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HISTORY 


OF  THE 


JUDICIARY  OF  MASSACHUSETTS 


INCLUDING  THE  PLYMOUTH  AND  MASSACHUSETTS  COLONIES, 
THE  PROVINCE  OF  THE  MASSACHUSETTS  BAY,  AND 
THE  COMMON  WEALTH 


WILLIAM  T.  DAVIS 

AUTHOR  OF  "  ANCIENT  LANDMARKS  OF  PLYMOUTH,"  "  HISTORY  OF 
PLYMOUTH,"  "  HISTORY  OF  NEWBURYPORT  AND  OTHER 
TOWNS,"  AND  "  HISTORY  OF  THE  BENCH 
AND  BAR  OF  MASSACHUSETTS  " 


THE  BOSTON  BOOK  COMPANY 
1900 


Copyright,  1900 
By  WILLIAM  T.  DAVIS. 


3.1  g  I 


PREFACE. 


In  the  preparation  of  this  work  I  have  gathered  frag- 
ments before  published  by  ine,  and  woven  them  with  new 
material  into  a  continuous  narrative.  I  have  ventured  to 
add,  with  some  doubts  of  its  pertinence,  an  introductory 
chapter,  reminiscent  in  character,  which  I  hope  may  not  be 
without  interest. 

Judge  Emory  Washburn  published  in  1840  a  Judicial  His- 
tory of  Massachusetts,  omitting  the  judiciary  of  the  Plym- 
outh Colony  and  of  the  Commonwealth,  the  seed  and 
flower  of  the  Massachusetts  judicial  system,  and  limiting 
the  scope  of  his  investigations  to  the  Colony  and  Province 
of  Massachusetts  Bay.  The  present  work  includes  not  only 
the  material  thus  omitted  by  him,  but  also  much  new  mate- 
rial within  the  field  covered  by  his  valuable  history. 

The  Great  Charter  of  New  England,  the  Patent  issued  by 
the  Council  for  New  England  to  the  Plymouth  Colony  in 
1621,  the  Patent  issued  by  the  Council  to  the  Plymouth 
Colony  in  1629,  the  Charter  of  the  Massachusetts  Colony, 
the  Charter  of  the  Province  of  Massachusetts  Bay  and  the 
Charter  explanatory  of  the  same,  are  placed  in  an  Appendix, 
where,  while  convenient  for  reference,  they  will  not  disturb 
the  current  of  the  historical  narrative. 

While  I  shall  be  held  justly  responsible  for  some  of  the 
imperfections,  which  will  doubtless  be  found  in  my  work, 
there  are  others  for  which  defective  records  are  alone  ac- 
countable. 

Wm.  T.  Davis. 

Plymouth,  Mass., 
August  1,  1900. 


376026 


INTRODUCTORY  CHAPTER. 


As  a  member  of  the  bar,  though  not  in  active  practice,  I 
have  been  more  or  less  familiar  with  the  courts  for  more  than 
fifty  years,  and  with  some  of  their  customs  for  a  much  longer 
period.  A  few  reminiscences  may  not  be  out  of  place  as 
introductory  to  a  judicial  history.  Some  of  the  outward  signs 
and  insignia  of  the  courts  have  disappeared,  and  much  of 
that  sacred  halo,  which  once  surrounded  them,  like  the  "di- 
vinity which  doth  hedge  a  king,"  has  gone  forever.  My  ideal 
judge  in  those  early  days  was  a  man  with  a  rotund  figure,  full 
cheeks,  florid  complexion  and  gray  hair  or  a  bald  head, 
who  carried  the  atmosphere  of  the  bench  into  everydaj'  life. 
The  Sheriff  was  the  first  gentleman  in  his  county,  and  ap- 
pointed by  the  Governor,  and  he  awed  the  populace  of  the 
shire,  when,  bearing  his  staff  of  office,  he  escorted  the  Judges 
to  and  from  the  sessions  of  the  court.  The  courthouse  bell, 
which  once  rang  out  its  "  Liar,  liar  come  to  court,"  is  no 
longer  heard,  and  with  the  school  bell  and  funeral  bell  has 
lost  the  use  of  its  tongue,  to  be  perhaps  followed  in  its 
silence  by  that  of  the  church  bells  themselves  in  some  near 
time,  when  only  the  factory  bells  will  be  heard  in  the  land. 

I  recall  the  Supreme  Judicial  Court,  when  Chief  Justice 
Lemuel  Shaw,  Samuel  Putnam,  Samuel  Sumner  Wilde, 
Marcus  Morton,  Sr.,  Charles  Augustus  Dewey  and  Samuel 
Hubbard  sat  on  its  bench,  and  no  more  learned  and  incor- 
ruptible court  ever  sat  in  Massachusetts  or  elsewhere.  The 
Chief  Justice  was  the  incarnation  of  law  and  justice,  and  it 
was  impossible  to  imagine  him  swayed  by  prejudice  or  popu- 
lar clamor.  He  was  obedient  only  to  the  dictates  of  an 
unerring  judicial  mind. 

I  recall  also  the  Court  of  Common  Pleas,  when  its  bench 
was  occupied  by  Chief  Justice  Artemas  Ward,  John  Mason 

00 


vi 


INTRODUCTORY  CHAPTER. 


"Williams,  Solomon  Strong,  David  Cummins,  Charles  Henry 
Warren,  Charles  Allen  and  Pliny  Merrick,  most  of  whom 
might  have  been  transferred  to  the  higher  court  without 
abating  its  dignity  or  learning. 

I  have  seen  engaged  in  the  trial  of  causes,  Daniel  Web- 
ster, Rnfus  Choate,  James  Trecothick  Austin,  Franklin 
Dexter,  William  H.  Gardner,  Charles  Greeley  Loring,  Sidney 
Bartlett,  Benjamin  R.  Curtis,  George  S.  Hillard,  William 
Whiting,  Richard  H.  Dana,  Henry  H.  Fuller,  Gnstavus  A. 
Somerby  and  Tolman  Willey  of  the  Suffolk  bar ;  Nathaniel  J. 
and  Otis  P.  Lord  and  Robert  Rantoul  of  the  Essex  bar; 
Samuel  Hoar,  Josiah  G.  Abbott,  Benjamin  F.  Butler,  Theo- 
dore H.  Sweetser  and  George  F.  Farley  of  the  Middlesex 
bar ;  Pliny  Merrick  and  Benjamin  F.  Thomas  of  the  Worces- 
ter bar ;  Ezra  Wilkinson  and  Ellis  Ames  of  the  Norfolk  bar ; 
John  H.  Clifford,  Thomas  Dawes  Eliot  and  Timothy  G. 
Coffin  of  the  Bristol  bar,  and  William  Baylies,  Zachariah 
Eddy  and  Thomas  Prince  Beal  of  the  Plymouth  bar,  and  I 
distinctly  recall  the  personal  and  mental  traits  which  dis- 
tinguished them.  Concerning  each  an  interesting  story  might 
be  told,  but  a  special  reference  to  a  few  of  them  must  suffice. 

Though,  to  the  best  of  my  recollection,  I  have  heard  Mr. 
Webster  make  eleven  speeches,  only  on  one  occasion  have  I 
heard  him  before  a  jury.  He  was  not,  as  many  who  have 
never  heard  him,  suppose,  a  fluent  speaker.  A  fluent  man  is 
rarely,  if  ever,  concise,  but  Mr.  Webster's  sentences  were 
composed  of  selected  words,  and  always  compactly  framed. 
He  would  in  extemporaneous  speech  often  hesitate,  and  he 
had  a  little  trick  of  scratching  his  right  ear  until  the  word 
he  wanted  came  to  his  tongue.  Like  the  skilful  workman, 
who,  not  content  with  the  stones  lying  near  to  his  hand, 
turns  them  over  and  selects  one  which  will  best  fit  the  place 
in  the  wall  which  he  wants  to  fill,  he  picked  out  from  the 
entire  vocabulary  the  word  which  expressed  his  meaning, 
and  thus  made  his  sentences  the  best  examples  of  rhetorical 
art. 

Mr.  Webster  in  speaking  always  stood  square  upon  his 


INTRODUCTORY  CHAPTER. 


vii 


feet,  and  neither  Powers,  the  sculptor  of  the  statue  in  the 
Massachusetts  State  House  yard,  nor  the  sculptor  of  the 
statue  recently  dedicated  in  Washington,  would  have  repre- 
sented him  with  one  knee  bent  if  he  had  ever  seen  him  on 
his  legs.  There  is  a  statue  or  statuette  by  Thomas  Ball 
which  shows  the  attitude  in  which  he  invariably  stood. 

The  occasion,  to  which  I  have  referred,  when  I  heard  him 
before  a  jury,  was  only  two  or  three  years  before  his  death, 
and  was  his  last  appearance  in  a  Boston  court.  The  case 
on  trial  was  a  patent  case,  in  which  Mr.  Choate  was  the 
leading  counsel  on  the  other  side.  I  remember  the  playful 
mood  in  which  during  the  trial  he  occasionally  indulged. 
Mr.  Choate,  after  finishing  his  address  to  the  jury,  left  the 
court  room  for  a  minute  or  two  during  a  short  recess,  and 
in  his  absence  Mr.  Webster  took  the  sheets  of  his  brief  cov- 
ered with  that  hieroglyphic  writing,  which  no  one  but  Mr. 
Choate  himself  could  read,  and  which  even  he  often  found 
illegible  after  it  had  got  cold,  as  he  once  said,  and  walking 
majestically  across  the  bar  distributed  them  among  the  ladies 
who  had  crowded  the  seats  behind  the  rail  to  hear  the  thun- 
der and  witness  the  lightning  of  those  wonderful  men. 

One  secret  of  Mr.  Choate's  marvelous  success  as  an  advo- 
cate lay  in  his  personal  magnetism.  His  fine  presence,  his 
sympathetic  heart,  his  tender  nature,  unruffled  temper  and 
winning  voice  and  smile  were  never  failing  auxiliaries  to  his 
eloquence  and  logic  ;  and  I  never  went  into  the  court  room 
where  he  was  trying  a  case  without  having  my  sympathies 
at  once  enlisted  on  his  side.  There  is  no  reason  to  doubt 
that  the  same  mysterious  influence  which  acted  on  me  acted 
also  on  the  jury.  It  is  probable  that  his  greatest  triumph 
as  a  criminal  lawyer  was  the  acquittal  of  Albert  J.  Tirrell, 
indicted  for  murder,  on  the  ground  of  somnambulism.  The 
defense  was  novel  and  ingenious,  but  added  little  to  his 
fame ;  was  well  enough  perhaps  for  once,  but  could  be  no 
more  offered  a  second  time  than  the  defense  in  a  recent 
novel  that  a  man  supposed  to  have  been  murdered  was  killed 
by  a  meteoric  stone. 


viii 


INTRODUCTORY  CHAPTER. 


Perhaps  the  next  most  important  criminal  trial  in  which 
Mr.  Choate  was  engaged  was  that  of  a  master  of  a  vessel 
charged  with  barratry  on  the  coast  of  St.  Domingo.  In  this 
trial  an  incident  occurred  under  my  observation  showing  his 
knowledge  of  human  nature  and  of  the  susceptibility  of  the 
human  heart  to  emotions  as  the  result  of  causes  of  the  most 
trivial  kind.  The  case  had  been  tried  once  with  Robert 
Rantoul  as  United  States  Attorney,  and  the  jury  had  disa- 
greed. Before  the  second  trial,  under  a  new  national  admin- 
istration, George  Lunt  had  been  appointed  Attorney,  and 
Mr.  George  Dwight  Guild,  a  lawyer  then  recently  admitted 
to  the  bar,  was  sent  to  St.  Domingo  to  secure  additional  evi- 
dence for  the  government.  The  insurance  companies  had 
suffered  severely  from  such  fraudulent  acts  as  that  with 
which  the  defendant  was  charged,  and  the  second  trial  was 
entered  upon  with  an  apparent  certainty  of  conviction. 
After  the  evidence  had  all  been  put  in  and  the  defendant's 
case  seemed  desperate,  a  short  recess  was  had,  during  which 
Mr.  Choate  in  going  through  the  lobby  passed  a  group  of 
sailors  of  which  the  colored  cook  of  the  wrecked  vessel  was 
one,  and  overheard  him  say  that  the  Captain  cried  when  he 
abandoned  his  vessel.  At  the  close  of  the  recess  Mr.  Choate 
stated  to  the  court  that  an  important  piece  of  evidence  had 
just  come  to  his  knowledge,  and  asked  permission  to  put  it 
in.  Mr.  Lunt  objected,  but  the  court  assented,  and  the 
cook  was  called  to  the  stand.  The  cook  then  testified  that 
wheu  the  Captain  left  his  vessel  he  cried  like  a  child.  This 
was  enough  for  Mr.  Choate,  and  in  his  address  he  pictured 
the  Captain  in  such  a  pathetic  manner,  showing  the  improb- 
ability of  a  guilty  destruction  of  the  vessel  b}^  a  man  who 
exhibited  so  much  distress  at  her  loss,  that  the  jury  returned 
a  verdict  of  not  guilty. 

Henry  H.  Fuller  was  an  interesting  figure  at  the  Boston 
bar,  and  his  addresses  to  the  jury  were  so  full  of  humor  and 
sarcasm,  that  when  it  was  known  in  Court  street  that  he  was 
about  to  speak  the  students  and  younger  lawyers  flocked  to 
hear  him.    His  appearance  in  the  street  with  his  spencer,  one 


INTRODUCTORY  CHAPTER. 


ix 


of  the  last  worn  in  Boston,  suggested  his  humorous  disposi- 
tion. He  was  a  sound  lawyer,  but  when  he  found  that  the  law 
would  not  help  his  case,  he  resorted  to  ridicule  and  sarcasm, 
and  so  surrounded  the  facts  with  an  atmosphere  of  wit  as  to 
make  them  only  visible  through  a  distorted  medium.  Iu 
trying  a  case  with  Samuel  Hoar  the  opposing  counsel,  he 
exhibited  his  peculiar  traits  in  a  marked  degree.  Mr.  Hoar 
was  a  man  distinguished  for  his  dignity,  conscientiousness 
and  integrity,  and  also  for  a  most  serious  and  sober  deliv- 
ery, which  often  made  a  strong  impression  on  juries.  This 
was  aU  very  well  in  his  own  county  among  the  farmers  and 
mechanics  of  Middlesex,  who  knew  him,  and  who  believed 
that  Squire  Hoar  always  uttered  the  true  law  and  gospel,  but 
with  a  Boston  jury  it  was  different,  and  on  this  occasion, 
after  he  had  finished  a  characteristic  speech  to  the  jury.  Mr. 
Fuller  rose  and  said  in  a  drawling,  melancholy  tone,  "  May  it 
please  your  Honor  and  you,  Gentlemen  of  the  Jury,  let  us 
close  the  exercises  on  this  solemn  occasion  with  a  prayerful 
examination  of  the  evidence  in  the  case."  From  that  mo- 
ment the  impression  made  by  Mr.  Hoar's  serious  speech  was 
gone,  and  only  his  manner  remained  in  the  minds  of  the  ju- 
rors to  excite  an  occasional  smile  as  their  memory  recalled  it. 

George  Frederick  Farley  of  Groton  appeared  occasionaUy 
in  the  Boston  courts,  and  indeed  from  1852  until  his  death 
in  1856  he  was  a  member  of  the  Suffolk  bar.  Few  abler 
jury  lawyers  have  ever  appeared  in  Massachusetts.  A 
graduate  of  Harvard  in  the  class  of  1816,  admitted  to  the 
Middlesex  bar  in  1820,  he  practiced  until  1832  in  New  Ips- 
wich, N.  H.,  aud  then  removed  to  Groton,  Mass.,  where  he 
remained  until  he  opened  an  office  in  Boston  in  1852.  His 
training  at  the  Xew  Hampshire  bar  prepared  him  for  the 
rough  and  tumble  of  professional  life,  and  his  Middlesex 
practice  gave  him  opportunities  to  measure  his  strength  with 
the  legal  gladiators  of  an  arena  in  which  hard  blows  were 
expected  to  be  given  and  taken.  A  master  of  the  law,  lie 
was  also  a  master  of  invective  and  ridicule,  and  a  trembling 
hand,  with  which  nature  had  endowed  him  lent  impressive- 


X 


INTRODUCTORY  CHAPTER. 


ness  to  his  speech.  He  spared  neither  witness  nor  opposing 
counsel.  He  would  in  humorous  and  sarcastic  words  refer 
to  some  peculiarity  of  habit  or  speech  of  his  antagonist  and 
so  fix  it  in  the  minds  of  the  jury  that  while  he  in  turn  was 
addressing  them  their  attention  was  diverted  from  his  argu- 
ment to  the  peculiarity  which  had  been  adverted  to.  On  one 
occasion  Tolman  Willey  was  to  follow  him  in  addressing  the 
jury,  a  man  who  could  utter  more  words  in  a  minute  than 
any  other  lawyer  I  have  known  except  perhaps  John  C. 
Park.  Farley  compared  him  with  Demosthenes  and  Cicero, 
to  whom,  however,  he  was  superior,  because  those  distin- 
guished orators  occasionally  hesitated  in  speech.  While 
Willey  was  addressing  the  jury  their  minds  were  more  intent 
on  counting  his  words  than  on  his  argument  and  they  gave 
Farley  a  verdict. 

There  was  an  implacable  warfare  between  Mr.  Farley  and 
John  P.  Robinson.  Judge  Abbott,  told  me  that  Robinson 
came  into  his  office  one  morning  wringing  his  hands  in  great 
glee,  and  said,  "Great  times  in  hell  this  morning,  Judge, 
Farley  died  last  night." 

Mr.  Willey,  above  referred  to,  had  other  marked  traits 
besides  rapidity  of  speech.  He  was  an  able  and  indefati- 
gable lawyer,  and  sometimes  in  his  remarks  in  court  would 
go  to  the  verge  of  propriety.  An  illustration  of  this  once 
occurred  in  my  presence.  He  was  trying  a  case  before  Chief 
Justice  Daniel  Wells  of  the  old  Common  Pleas  Court,  in  which 
his  success  depended  on  the  exclusion  of  a  certain  fact,  tue 
appearance  of  which  in  evidence  would  be  fatal  to  him.  In 
this  exclusion,  so  far  as  the  examination  of  witnesses  by 
either  counsel  was  concerned,  he  was  successful,  but  as  the 
last  witness  was  leaving  the  stand  Judge  Wells  called  him 
back  and  asked  him  a  question,  which  drew  out  the  fatal 
fact.  Willey  realizing  that  his  case  was  lost,  rose  from  his 
chair  and  looking  around  said,  "  Is  there  any  other  gentleman 
in  the  court  room  who  would  like  to  ask  this  witness  a 
question  ?  " 

He  was  a  man  of  quaint  humor  too.    On  one  occasion  he 


INTRODUCTORY  CHAPTER. 


xi 


clef  ended  a  man  on  the  ground  of  insanity.  The  jury  brought 
in  a  verdict  of  guilty,  but  no  one  in  court  from  the  Judge 
down  had  any  doubt  of  the  insanity  of  the  prisoner.  "When 
the  verdict  was  rendered  the  Judge,  who  was  astonished  at 
it,  said,  "  Have  you  anything  to  say,  Mr.  Willey  ?  "  "  Your 
Honor,"  said  Mr.  "Willey,  "  my  client,  an  insane  man,  has  ex- 
ercised his  constitutional  right  to  be  tried  by  his  peers,  and 
as  they  have  declared  him  guilty,  I  don't  think  I  have  any- 
thing to  say." 

Referring  to  the  question  asked  of  the  witness  by  Judge 
Wells,  once  when  Jeremiah  Mason  encountered  the  same 
interference  from  the  bench,  he  stopped  the  witness  before 
he  could  answer  the  Judge's  question,  and  said  "Your  Honor, 
if  the  question  is  asked  for  the  plaintiff  I  don't  want  it ;  if  it 
is  asked  for  the  defendant,  I  object."  This  remark  of  Mr. 
Mason  suggests  the  probability  that  he  thought  it  incom- 
petent for  a  Judge  to  introduce  evidence  not  offered  by 
counsel. 

Ezra  Wilkinson  of  Dedham,  District  Attorney,  and  after- 
wards Judge  of  the  Superior  Court,  was  as  learned  in  the 
classics  as  in  the  law.  Meeting  him  in  the  street  in  Boston 
one  day,  I  asked  him  where  a  certain  passage  could  be  found. 
He  said  that  he  could  find  it  easily  and  would  do  so  and  let  me 
know.  Meeting  him  again  about  an  hour  afterwards  he  said, 
"Go  into  Little  &  Browns  and  in  the  right-hand  book  case, 
third  shelf,  fourteenth  book,  and  on  the  three  hundred  and 
twenty-fifth  page  you  will  find  the  passage."  Such  Judges 
as  Ezra  Wilkinson  and  Charles  Allen  who  has  recently,  since 
his  retirement  from  the  bench,  made  an  invaluable  contribu- 
tion to  Shakespearian  literature,  disclose  to  us  the  thoughts 
of  those  on  the  bench,  who  appear  to  be  absorbed  in  the 
drudgery  of  their  official  positions.  Judge  Wilkinson  Avas 
a  bachelor  and  had  some  of  a  bachelor's  habits.  He  told  me 
once  that  he  still  owned  every  pair  of  boots  that  he  had 
bought  for  forty  years,  and  that  if  any  of  them  went  out  of 
fashion  they  were  sure  to  come  into  fashion  again  after  a 
time. 


xii 


INTRODUCTORY  CHAPTER. 


Judge  Charles  Henry  Warren,  who  sat  on  the  bench  of 
the  Common  Pleas  Court  from  1839  to  1844,  not  only  grasped 
almost  intuitively  the  salient  points  of  cases  on  trial,  but 
had  also  a  wonderfully  retentive  memory.  He  was  a  mem- 
ber of  my  family  during  the  last  three  years  of  his  life,  and 
he  told  me  that  as  a  lawyer  he  never  had  a  brief,  as  District 
Attorney  he  never  lost  an  indictment,  and  that  after  a  ser- 
vice of  nearly  five  years  on  the  bench  he  could  have  put  in 
his  pocket  all  the  notes  he  had  ever  taken.  He  was  a  man 
of  keen  wit,  sharp  in  repartee  and  always  ready  with  a  bon 
mot  when  occasion  offered.  I  remember  that  at  the  opening 
of  the  Old  Colony  Railroad  in  1845  a  large  party  of  gentle- 
men went  to  Plymouth  on  a  special  train,  and  that  the  Judge 
said  as  the  cars  ran  swiftly  by  the  burial  ground  in  Quincy, 
"  Here,  gentlemen,  you  have  an  illustration  of  the  quick  and 
the  dead."  At  the  annual  festival  of  the  New  England  So- 
ciety of  New  York,  in  1844,  I  think,  the  Judge  was  a  guest. 
It  was  then  the  custom,  as  it  is  now,  to  invite  the  Presidents 
of  the  Knickerbocker,  St.  George,  St.  Andrews  and  St. 
Patrick  societies,  and  on  that  occasion  the  President  of 
the  St.  Patrick  Society  closed  his  speech  with  a  toast,  now 
somewhat  hackneyed,  but  then  entirely  new,  "Plymouth 
Rock,  the  Blarney  Stone  of  New  England."  Judge  Warren 
rose  at  once  and  said,  "  Mr.  President,  permit  me  to  offer 
in  response  to  the  toast  we  have  just  heard,  '  The  Shamrock 
of  Ireland  and  the  true  rock  of  New  England.'  " 

Judge  Merrick,  who  contributed  to  the  learning  and  dig- 
nity of  two  courts,  the  Common  Pleas  and  Supreme  Judi- 
cial, was  a  man  of  a  singularly  tender  nature  and  endowed 
with  great  professional  ability,  which  however  was  limited 
and  restrained  by  a  conscientious  regard  for  personal  pro- 
prieties, which  unfitted  him  for  the  rough  and  tumble  of  the 
criminal  courts.  In  the  trial  of  Professor  John  W.  Web- 
ster, whom  he  defended,  assisted  by  Edward  D.  Sohier, 
which  I  attended,  he  seemed  to  me  to  be  wanting  in  that 
bold  aggressiveness  and  air  of  confidence  in  the  innocence 
of  his  client  which  are  the  essential  qualifications  of  a  crim- 


INTRODUCTORY  CHAPTER. 


xiii 


inal  lawyer.  Perhaps  he  had  served  too  many  years  as  Dis- 
trict Attorney  to  believe  any  man  under  indictment  to  be 
innocent.  While  a  feeling  seemed  to  pervade  the  public 
mind  that  the  conviction  of  Webster  was  necessary  to  prove 
that  no  partiality  would  be  shown  to  men  in  high  social  life, 
there  was  an  opportunity  for  a  daring  attorney  like  Butler 
or  Farley  or  Somerby  to  denounce  the  influence  against  his 
client  of  the  wealth  which  Parkman  represented,  and  thus 
in  part  at  least  to  counteract  the  current  of  popular  senti- 
ment. But  this  Judge  Merrick  was  not  the  man  to  do.  In- 
deed there  was  an  atmosphere  of  timidity  and  dejection  sur- 
rounding the  defense  through  the  whole  trial  which  was  onty 
for  a  moment  dissipated  while  the  witness  Clary  was  testi- 
fying that  he  saw  Parkman  in  the  street  at  a  time  later  than 
that  when  it  was  claimed  that  the  murder  was  committed. 
There  was  a  piece  of  evidence  too,  of  which  the  defense  did 
not  seize  the  full  advantage.  It  was  proved  that  Webster 
went  to  Parkman's  house  and  made  an  appointment  for  him 
to  call  at  the  medical  school  on  the  day  of  the  murder,  and 
this  was  claimed  by  the  Government  as  proof  of  a  deliberate 
plan  to  commit  the  crime.  Though  at  that  time  and  until 
1858,  if  the  killing  were  proved,  malice  aforethought  was 
presumed,  unless  there  was  conclusive  evidence  to  the  con- 
trary, the  improbability  amounting  almost  to  impossibility 
that  a  murderer  would  allure  his  victim  to  his  death  not  by 
a  sealed  letter  nor  by  personal  request  but  through  a  third 
party,  if  properly  enforced,  would  have  had  on  the  minds  of 
at  least  some  of  the  jury  sufficient  influence  to  prevent  a 
conviction  of  murder.  In  the  trial  of  Edward  Stokes  for  the 
murder  of  James  Fiske  an  incident  occurred  similar  in  the 
presumption  it  furnished  which  in  the  hands  of  Rufus  Choate 
would  have  made  a  verdict  of  murder  impossible,  and  yet 
the  counsel  for  the  defense,  if  I  remember  correctly,  took 
no  notice  of  it.  It  appeared  in  evidence  that  Fiske  entered 
a  side  door  of  the  Fifth  Avenue  Hotel  and  was  about  to  go 
up  a  stairway  just  as  Stokes  appeared  at  the  head  of  the 
stairway  to  go  down.    The  theory  of  the  defense  was  that 


xiv 


INTRODUCTORY  CHAPTER. 


both  had  pistols,  and  that  Stokes  seeing  Fiske  about  to  draw 
bis  was  the  first  to  fire.  The  incident  to  which  I  refer  was 
the  testimony  of  a  servant  of  the  hotel  that  Stokes  immedi- 
ately ran  into  the  upper  corridor  crying  out,  "  Go  for  a  Doc- 
tor !  Go  for  a  Doctor  !  "  Mr.  Choate  would  have  made  it 
impossible  for  a  jury  to  believe  that  a  deliberate  murderer 
would  have  been  anxious  to  save  the  life  of  his  victim.  Con- 
cerning the  fate  of  Dr.  Webster,  it  is  my  belief  that  he  was 
finally  the  victim  of  class  feeling  in  the  community.  York, 
a  colored  murderer,  had  been  recently  executed  in  spite  of 
a  strong  petition  for  commutation,  and  it  was  felt  that 
mercy,  which  had  been  denied  to  a  poor  illiterate  negro, 
should  not  be  extended  to  a  college  professor.  My  own 
conviction  has  always  been  that  the  blow,  which  destroyed 
the  life  of  Dr.  Parkman,  was  inflicted  in  a  sudden  fit  of  pas- 
sion provoked  by  an  inexorable  creditor,  and  that  the  sub- 
sequent acts  of  Webster  were  those  to  which  any  timid  man 
might  resort  to  conceal  his  crime. 

There  were  other  men  fifty  or  sixty  years  ago  besides 
those  already  mentioned  who  occupied  leading  positions 
at  the  Suffolk  bar.  Jonathan  Palmer  Rogers,  or  Jock 
Rogers  as  he  was  familiarly  called,  came  from  Maine,  where 
he  had  been  Attorney  General,  and  settled  in  Boston  in  1840, 
and  died  in  1846  after  six  years  of  lucrative  practice. 

Joel  Parker  came  to  Massachusetts  from  New  Hampshire, 
where  he  had  been  Chief  Justice  of  the  Superior  Court,  and 
Joseph  Bell  came  to  Boston  from  New  Hampshire  in  1842, 
and  until  his  death  in  1851  stood  in  the  front  rank  of  Suffolk 
County  lawyers.  His  son,  Joseph  Mills  Bell,  became  a  part- 
ner of  Rufus  Choate  and  married  his  daughter,  a  cousin, 
Mr.  Choate  and  Joseph  Bell  having  married  sisters,  daugh- 
ters of  Mills  Olcott  of  Hanover,  N.  H.  He  was  on  the  staff 
of  General  Butler  in  the  early  part  of  the  civil  war  and  as 
Judge  of  the  Recorder's  Court  in  New  Orleans,  rendered 
valuable  service.  He  was  on  one  of  the  ships,  which  ran  by 
the  forts  on  the  Mississippi  River,  and  on  his  return  to 
Boston  one  of  his  friends  said  to  him,  "Joe  weren't  you  fright- 


INTRODUCTORY  CHAPTER. 


XV 


ened?"  "  I  don't  know  whether  I  was  or  not,"  he  said,  "  but 
this  I  know,  that  we  were  one  hour  running  the  forts,  that 
when  the  first  gun  was  fired  I  had  two  papers  of  fine  cut 
tobacco  in  my  pocket,  and  that  when  the  last  gun  was  fired 
I  had  used  it  all  up." 

Gustavus  Adolphus  Somerby  came  to  the  Suffolk  bar  a 
little  later  than  those  above  mentioned.  In  his  defense  of 
Leavitt  Alley,  charged  with  murder  and  tried  in  Boston  in 
1878,  he  achieved  a  victory  as  great  as  any  recorded  in  the 
history  of  Massachusetts  capital  trials.  In  the  catalogue  of 
celebrated  defenses  it  stands  beside  those  of  Thomas  Oliver 
Selfridge  by  Samuel  Dexter,  of  Albert  J.  Tirrell,  by  Rufus 
Choate,  and  of  Lizzie  Borden  by  George  Dexter  Robinson. 
While  not  suggesting  the  possibility  of  the  guilt  of  the  son, 
instead  of  the  father,  he  so  conducted  the  examination  of 
witnesses,  while  omitting  to  call  the  son  to  the  stand,  as 
to  cause  the  jury  of  its  own  volition  to  raise  the  question 
whether  the  son  and  not  the  father  was  not  really  the  guilty 
party.  Mr.  Somerby  never  recovered  from  the  effects  of 
this  trial,  and  died  in  1879,  with  a  reputation  as  a  criminal 
lawyer,  which  a  longer  life  and  ampler  opportunities  would 
have  fully  established  and  confirmed. 

Of  Charles  Greeley  Loring,  Sidney  Bartlett  and  Benjamin 
Robbins  Curtis,  the  writer  has  no  diverting  story  to  tell. 
All  of  them,  scions  of  pure  New  England  stock,  graduates 
of  Harvard,  and  of  unimpeachable  character  and  purity  of 
life,  they  stood  for  many  years  at  the  head  of  the  bar,  bear- 
ing worthily  the  honors  which  Webster  and  Dexter  and 
Mason  had  lavishly  received  before  them.  The  professional 
career  of  Mr.  Loring,  pursued  at  times  with  difficulty,  while 
suffering  from  a  disease  of  the  eyes,  and  at  the  age  of  sixty 
practically  closed  by  his  acceptance  of  the  position  of  Actuary 
of  the  Massachusetts  Hospital  Life  Insurance  Company,  is 
discernible  at  every  step  in  the  volumes  of  the  Massachusetts 
Reports.  Professor  Theophilus  Parsons  said  that  during 
the  thirty  years  preceding  1855,  "  The  published  decisions  of 
the  Supreme  Judicial  Court  will  show  that  no  other  man  had 


xvi 


INTRODUCTORY  CHAPTER. 


so  large  a  number  of  cases  in  court,  and  of  the  cases  of  no 
other  was  the  proportion  so  large  of  those,  which  by  the 
novelty  of  the  questions  they  raised,  or  of  the  peculiar  cir- 
cumstances, to  which  they  require  the  application  of  acknowl- 
edged principles,  may  be  considered  as  establishing  new  law, 
or  giving  new  scope  and  meaning  to  recognized  law." 

Mr.  Bartlett,  five  years  the  junior  of  Mr.  Loring,  was  not 
far  behind  him  in  reaching  the  rank,  in  which  he  stood,  and 
until  the  age  of  ninety,  twenty-two  years  after  the  death  of 
Mr.  Loring  and  fifteen  years  after  the  death  of  Mr.  Curtis, 
he  held  the  position,  not  only  of  Nestor  of  the  bar,  but  also  its 
acknowledged  leader.  Without  the  art  to  captivate  a  jury, 
his  sphere  was  in  counsel  and  in  arguments  before  the  court, 
and  when  his  opinions  were  written,  the  fountains  of  law  were 
exhausted.  It  was  said  by  a  Chief  Justice  of  the  United 
States  Supreme  Court,  that  no  man  was  so  instructive  to  the 
bench  as  Mr.  Bartlett,  and  that  when  his  arguments  were 
finished  it  was  useless  to  "  rake  after  the  cart." 

Benjamin  Robbins  Curtis  belonging  to  the  same  school  of 
lawyers  as  Mr.  Loring  and  Mr.  Bartlett  was  not  brilliant 
before  a  jury  but  was  learned  in  the  law,  wise  in  counsel, 
and  in  the  workings  of  his  mind  logical  and  judicial.  The 
honors  bestowed  on  him  showed  the  public  estimate  of  his 
character  and  attainments.  Judge  of  the  United  States 
Supreme  Court  from  1851  to  1856,  appointed  with  William  M. 
Evarts  and  Caleb  Cushing  in  1871  counsel  for  the  United 
States  before  the  Board  of  Arbitration  at  Geneva,  an  office 
which  he  declined,  and  in  1868  one  of  the  counsel  for  Andrew 
Johnson  in  his  impeachment  trial,  he  ran  through  an  espe- 
cially honorable  career,  which  was  closed  by  his  death  in 
1874,  at  the  age  of  sixty-five,  while  his  mental  powers  were 
still  unimpaired  and  vigorous. 

While  on  the  Supreme  bench  Mr.  Curtis  gave  a  dissenting 
opinion  in  the  famous  case  of  Dred  Scott  which  excited 
intense  interest  throughout  the  country,  and  as  a  generation 
and  a  half  have  elapsed  since  the  decision  in  that  case,  its 
rehearsal  may  be  interesting  to  many  readers. 


INTRODUCTORY  CHAPTER.  XVli 

The  case  was  Dred  Scott  against  Sandford  and  the  opin- 
ions of  all  the  justices  may  be  found  in  Howard's  Reports, 
volume  19.  It  was  brought  up  by  writ  of  error  from  the  Cir- 
cuit Court  of  the  United  States  in  the  District  of  Missouri, 
where  Scott,  as  a  citizen  of  Missouri,  had  brought  an  action 
of  trespass  vi  et  armis  against  Sandford,  a  citizen  of  New 
York,  who  had  arrested  the  plaintiff  as  his  slave. 

Before  the  suit  was  tried  Scott  had  brought  an  action  in 
the  Circuit  Court  of  St.  Louis  County,  a  state  court,  to 
obtain  his  freedom,  and  secured  a  verdict  in  his  favor.  On 
a  writ  of  error  to  the  State  Supreme  Court  the  judgment 
was  reversed  and  the  case  remanded  to  the  State  Circuit 
Court,  where  it  awaited  the  decision  of  the  United  States 
Supreme  Court  in  the  suit  for  trespass. 

The  suit  for  trespass  was  tried  in  May,  1854,  and  the  de- 
fendant, in  his  answer,  declared  that  the  plaintiff  was  not  a 
citizen  of  Missouri  because  he  was  a  negro,  whose  ancestors 
were  of  pure  African  blood.  The  jury  were  instructed  by 
the  Court  that  the  law  was  with  the  defendant  and  a  verdict 
of  not  guilty  was  rendered.  The  plaintiff  filed  exceptions 
to  the  ruling,  and  on  these  exceptions  the  case  had  come  to 
the  Supreme  Court. 

The  opinion  of  the  Court  given  by  the  Chief  Justice,  ftoger 
B.  Taney,  and  concurred  in  by  his  Associates,  James  B. 
Wayne,  John  Catron,  Peter  V.  Daniel,  Samuel  Nelson, 
Robert  C.  Grier  and  John  A.  Campbell  was  that  "  a  negro, 
whose  ancestors  were  imported  into  this  country  and  sold  as 
slaves,  whether  he  be  bond  or  free  himself,  cannot  become  a 
member  of  the  political  community  formed  and  brought  into 
existence  by  the  Constitution  of  the  United  States,  and 
become  entitled  to  all  the  rights  and  privileges  and  immuni- 
ties guaranteed  by  that  instrument  to  the  citizen,  one  of  which 
rights  is  the  privilege  of  suing  in  a  Court  of  the  United  States 
in  the  cases  specified  in  the  Constitution,  and  that  the  plain- 
tiff Scott  was  not  therefore  a  citizen  of  Missouri  in  the  sense 
in  which  that  word  was  used  in  the  Constitution." 
B 


xv  in 


INTRODUCTORY  CHAPTER. 


Messrs.  Curtis  and  McLean  dissented  from  the  opinion 
of  the  Court,  and  Mr.  Curtis  declared  : 

"  1st.  That  the  free  native  born  citizens  of  each  State  are 
citizens  of  the  United  States. 

"2d.  That  as  free  colored  persons  born  within  some  of 
the  States  are  citizens  of  those  States  such  persons  are  also 
citizens  of  the  United  States. 

"  3d.  That  every  such  citizen  residing  in  any  State  has 
the  right  to  sue  and  is  liable  to  be  sued  in  the  Federal  Courts 
as  a  citizen  of  that  State  in  which  he  resides." 

He  stated  in  closing  his  opinion,  "  I  dissent  from  that 
part  of  the  opinion  of  the  Court  in  which  it  is  held  that  a 
person  of  African  descent  cannot  be  a  citizen  of  the  United 
States." 

John  P.  Hale  of  New  Hampshire  appeared  at  least  once 
in  Court  in  Boston,  and  perhaps  more  than  once.  The  oc- 
casion to  which  I  refer  was  the  trial  of  the  alleged  rescuers 
of  Shadrach,  a  fugitive  slave,  from  the  hands  of  the  officers 
in  the  Boston  courthouse.  The  occasion  was  a  memorable 
one.  Mr.  Hale's  abhorrence  of  slavery  and  the  fugitive 
slave  law,  his  sympathy  for  the  slave  and  his  admiration  for 
those  who  at  personal  sacrifice  befriended  him,  stirred  to 
their  depths  the  feelings  of  his  heart  and  the  resources  of 
his  mind,  and  it  is  safe  to  say  that  for  eloquence  and  power 
his  speech  on  that  occasion  was  never  excelled  before  a  Suf- 
folk jury. 

Richard  H.  Dana,  Jr.,  appeared  also  for  one  or  more  of 
the  defendants  in  the  rescue  trials.  A  clear  and  honest 
statement  made  with  the  choicest  words  and  with  persuasive 
force  always  characterized  his  speeches.  No  better  exam- 
ple of  his  style  of  oratory  can  be  found  than  the  memorable 
address  made  by  him  in  the  Constitutional  Convention  of 
1853  against  the  proposition  to  make  the  Judiciary  of  Mass- 
achusetts elective.  If  the  proposition  should  ever  recur,  the 
distribution  of  his  speech  in  a  pamphlet  form  would  furnish 
the  most  conclusive  arguments  against  its  adoption. 

Judge  Charles  Allen  of  Worcester,  Associate  Justice  in 


INTRODUCTORY  CHAPTER. 


XIX 


the  old  Common  Pleas  Court,  Chief  Justice  of  the  Superior 
Court  for  the  County  of  Suffolk  and  Chief  Justice  of  the 
Superior  Court  for  the  Commonwealth,  is  sketched  in  a  later 
chapter  in  connection  with  the  latter  Court.  It  may  be 
added  here  that  combined  with  his  learning  in  the  law 
he  possessed  the  keenest  power  of  invective.  He  wasted 
neither  words  nor  time  in  prolonged  attacks,  but  with  a  sin- 
gle blow  demolished  his  antagonist.  At  a  Free  Soil  Con- 
vention in  Bridgewater  in  the  Van  Buren  and  Adams  cam- 
paign in  1848,  he  was  one  of  the  speakers.  He  had  left  the 
Whig  party  on  the  nomination  of  General  Taylor  and  was 
bitterly  denounced  by  his  old  party  friends.  The  week  be- 
fore, there  had  been  a  Whig  Convention  in  Bridgewater, 
and  William  Baylies,  a  very  wise  and  eminent  man,  Charles 
Henry  Warren,  a  very  witty  one,  and  Seth  Sprague,  a  brother 
of  Judge  Peleg  Sprague,  were  the  speakers.  Mr.  Sprague 
seized  the  opportunity  to  make  a  severe  attack  on  Judge 
Allen,  which  the  Judge  repelled  when  his  turn  came.  In 
his  allusion  to  Mr.  Sprague  he  compared  him  to  Beau  Nash 
whose  picture,  hanging  between  the  marble  busts  of  Newton 
and  Pope,  was  happily  described  by  Jane  Brereton  in  the 
following  couplet : 

The  picture,  placed  the  busts  between, 

Gives  satire  all  its  strength; 
Wisdom  and  wit  are  little  seen, 

But  Folly  at  full  length. 

The  following  illustrates  the  humor  of  Judge  Ebenezer 
Rockwood  Hoar,  who  though  a  man  of  the  warmest  heart, 
sometimes  added  the  flavor  of  sarcasm  to  his  witty  sayings. 
A  Massachusetts  Judge  somewhat  noted  for  his  discourtesy 
to  members  of  the  bar,  criticizing  one  day  the  appointment  of 
a  new  Judge,  said  to  him,  "Judge,  what  do  you  think  of 
the  selection?"  The  Judge  at  once  replied  in  words  with  a 
latent  meaning  which  probably  his  inquirer  later  discovered, 
"He  is  a  gentleman,  but  perhaps  that  is  not  an  absolute 
disqualification." 


XX 


INTRODUCTORY  CHAPTER. 


William  Whiting  must  not  be  overlooked,  —  an  advocate 
who  took  charge  of  only  such  cases  as  he  had  time  to 
thoroughly  understand ;  who  made  himself  master  of  the  art 
or  science  or  industry  to  which  his  suit  related  ;  and  if  in  a 
patent  case,  who  knew  as  much  of  the  intricate  details  of  the 
machine  in  question  as  the  inventor  himself  ;  or  if  a  marine 
case,  who  understood  every  part  of  the  ship  from  truck  to 
keelson. 

Nor  must  Franklin  Dexter  be  forgotten  with  his  Gre- 
cian head,  his  curly  hair,  his  sharp-cut  features,  and  bril- 
liant eye, — 

A  combination  and  a  form  indeed, 
Where  every  God  did  seem  to  set  his  seal, 
To  give  the  world  assurance  of  a  man. 

I  remember  him  in  the  trial  of  Mrs.  Kenney  for  the  mur- 
der of  her  husband,  in  which  he  defended  the  prisoner,  and 
James  T.  Austin  was  the  Attorney  General  and  prosecuting 
officer.  A  friction  was  manifest  all  through  the  trial  between 
Mr.  Austin  and  Mr.  Dexter  which  it  was  said  at  the  time 
was  the  afterglow  of  the  feeling  with  which  the  Austin 
family  had  always  resented  the  appearance  for  the  defendant 
by  Samuel  Dexter,  the  father  of  Franklin,  in  the  trial  of 
Thomas  O.  Selfridge  for  killing  Charles  Austin,  a  kinsman 
of  the  Attorney  General. 

Timothy  G.  Coffin  of  New  Bedford  was  a  terror  to  oppos- 
ing counsel.  Though  not  especially  learned  in  the  law  he 
was  a  successful  advocate,  and  at  the  Bristol  and  Plymouth 
courts  was  for  many  years  a  popular  lawyer  in  criminal 
causes.  He  generally  managed  to  get  the  laugh  on  his  an- 
tagonist, and  nine  times  out  of  ten  if  a  lawyer  gets  the  laugh 
on  him  his  case  is  gone.  At  one  time  the  District  Attorney 
in  the  Southeastern  District  was  an  extremely  homely  man, 
and  in  examining  a  witness  Mr.  Coffin  asked  him  what  kind  of 
a  looking  man  such  a  person  was.  The  witness  replied  that 
he  was  a  handsome  man.  "  Was  he  as  handsome  a  man  as 
my  friend  here,  the  District  Attorney  ?  "  asked  Mr.  Coffin. 


INTRODUCTORY  CHAPTER. 


xxi 


Ou  another  occasion  in  a  civil  case  his  opponent  was  a  very 
tall  and  erect  man  who  wore  his  hair  well  brushed  up  high 
above  his  head.  Mr.  Coffin  in  addressing  the  jury  cautioned 
them  against  the  eloquence  of  the  Lombardy  Poplar  of  the 
bar  who  was  to  follow  him. 

George  Marston,  Attorney  General  from  1879  to  1883, 
once  at  the  Plymouth  Court  suffered  one  of  those  setbacks, 
which  lawyers  sometimes  encounter  when  they  have  not  ex- 
amined their  witnesses  thoroughly  beforehand.  The  case 
on  trial  was  for  the  abatement  of  a  nuisance,  and  the  defend- 
ant was  the  owner  of  a  fish  guano  factory  in  Duxbury.  A 
number  of  witnesses  had  been  called  to  testify  to  the  nui- 
sance, but  the  star  witness,  who  lived  some  distance  from  the 
factory,  was  an  old  woman  who  had  been  reserved  for  the 
last.  She  was  so  deaf  that  she  had  heard  nothing  of  the 
testimony  and  did  not  even  know  what  the  case  was  about. 

"  "Where  do  you  live?"  asked  Mr.  Marston. 

"  In  Duxbury."  replied  the  witness. 

"  In  what  part  of  Duxbury?  " 

"In  the  village." 

"  How  far  should  you  judge  from  Mr.  Seaver's  guano 
factory  ?  " 

"  From  a  half  to  three  quarters  of  a  mile." 

"  Have  you  ever  smelt  a  bad  smell  at  your  house?" 

"Lor',  yes,  very  bad." 

"  When  was  it?" 

"  About  the  middle  of  last  July." 

"  What  did  it  smell  like  ? " 

"It  smelt  like  a  dead  hen." 

' '  You  say  it  smelt  like  a  dead  hen  ?  " 

"  Lor',  yes,  I  know  it  did  for  we  found  the  hen." 

No  picture  of  the  courts  fifty  years  ago,  especially  of  the 
Municipal  Court,  would  be  complete  without  an  allusion 
to  John  Augustus,  the  shoemaker  philanthropist,  who  for 
more  than  twenty  years  made  the  courts  his  daily  resort, 
and  devoted  himself  to  the  reclamation  of  offenders.  In 
cases  deserving  sympathy  he  offered  himself  as  bondsman 


xxii 


INTRODUCTORY  CHAPTER. 


for  the  good  behavior  of  the  criminal,  thus  securing  his  re- 
lease and  almost  invariably  his  reformation. 

A  remarkable  character  in  and  about  the  courts  in  Bos- 
ton fifty  years  ago  was  a  man  who  called  himself  Count 
Johannes.  His  name  was  George  Jones,  the  son  of  George 
Jones,  a  constable  of  Boston,  where  he  was  born.  In  early 
life  he  acted  on  the  stage  of  the  old  Tremont  Theatre. 
About  the  year  1840,  when  about  thirty-five  years  of  age,  he 
went  to  England  and  there  in  the  lesser  theatres  appeared 
in  some  of  the  leading  parts  in  Shakespeare's  plays.  His 
performances  amused  the  people  and  gave  him  a  notoriety 
to  which  London  Punch  with  its  satire  largely  added.  He 
returned  to  Boston  not  many  years  before  the  war  and  made 
himself  conspicuous  by  his  libel  suits  against  persons  who 
dared  to  express  doubts  of  his  title.  He  claimed  that  the 
rank  of  Count  had  been  conferred  on  him  in  England,  and 
he  wore  the  badges  of  his  assumed  rank.  He  not  only  man- 
aged his  own  suits  but  appeared  in  court  as  special  attorney 
of  others,  and  for  several  years  was  the  terror  of  the  news- 
papers and  the  courts.  In  a  suit  brought  against  Wm.  L. 
Burt  for  a  libel  contained  in  au  address  to  the  jury  in  a  case 
in  which  the  Count  was  the  plaintiff,  the  libel  consisting  of 
the  declaration  that  he  was  insane,  he  described  himself  in 
the  declaration  to  the  writ  as  "  a  public  author  of  historical 
and  other  works,  public  lecturer  and  public  oratorical  illus- 
trator of  the  Sacred  Scriptures  and  the  works  of  Shakes- 
peare, and  special  attorney." 

He  brought  another  suit  against  Francis  H.  Underwood 
for  writing  in  the  Boston  Atlas  and  Bee  that  "there  flour- 
ishes a  soi  disant  count  with  his  decorations  given  by  the 
Grand  Duke  Pumpernickel  or  bought  from  some  similar 
august  potentate."  This  suit  caused  Mr.  Underwood  much 
trouble,  but  at  much  cost  he  discovered  the  origin  of  the  as- 
sumed title  and  effectually  put  an  end  to  the  pretensions  of 
the  man  who  bore  it.  Affidavits  were  secured  in  England 
showing  that  Mr.  Sartoris,  the  son-in-law  of  Adelaide  Kem- 
ble,  sister  of  Fanny  Kernble,  in  order  to  make  sport  of  Jones, 


INTRODUCTORY  CHAPTER. 


xxiii 


invited  him  to  a  supper  in  London,  and  in  the  course  of  the 
evening  told  him  with  assumed  seriousness  that  he  ought  to 
have  a  title,  and  that  as  he  himself  was  descended  from  an 
ancient  count  whose  right  to  confer  the  rank  on  others  en- 
ured to  his  descendants,  he  would  bestow  the  title  on  him. 
Making  him  kneel  on  the  floor  he  said  :  "  Rise,  George,  the 
Count  Johannes,  Knight  of  the  Golden  Spur."  But  as  Mr. 
Sartoris  was  really  descended  from  a  count  it  was  necessary 
to  show  that  he  had  no  power  to  confer  the  title,  and  an  affi- 
davit was  obtained  from  the  Chancellor  of  Austria  showing 
that  the  last  and  only  grant  of  the  title  with  a  descending 
power  of  transfer  was  made  in  1495,  and  that  the  family 
possessing  it  had  lapsed.  It  was  also  shown  by  experts, 
among  whom  was  Edmund  Quincy,  that  the  title  of  the  Knight 
of  the  Golden  Spur  was  alone  given  by  the  Pope  to  such  as 
had  performed  some  special  service  to  the  Romish  Church. 

The  Count  finally  became  so  troublesome  with  his  suits 
that  he  was  indicted  for  barratry  and  convicted ;  but  a  sen- 
tence to  the  House  of  Correction  was  withheld  on  the  con- 
dition that  he  would  leave  the  State.  The  reader  is  referred 
for  further  information  concerning  the  above  libel  suits  to 
Johannes  vs.  Bennett,  5th  of  Allen,  and  Johannes  vs.  Burt, 
vs.  Underwood,  vs.  Mudge,  vs.  Nickerson,  vs.  Pangborn,  6th 
of  Allen,  Mass.  Reports.  Jones  went  to  New  York  and  is 
said  to  have  died  there  about  1880. 

The  first  case,  Johannes  vs.  Bennett,  was  tried  in  the 
Supreme  Court  before  Judge  Merrick,  and  a  verdict  given 
for  the  plaintiff.  The  defendant  was  a  clerg37man  of  whose 
congregation  a  lady  engaged  to  be  married  to  Johannes  had 
been  a  member.  The  parents  of  the  lady  objected  very 
strongly  to  the  engagement,  and  the  defendant  at  their  re- 
quest wrote  a  letter  to  her,  which  contained  the  alleged 
libel.  At  the  trial  the  plaintiff  testified  that  he  had  volun- 
tarily burned  the  letter,  and  the  court  permitted  him  to  state 
its  contents.  To  this  evidence  the  defendant  took  excep- 
tions, and  Chief  Justice  Bigelow  in  giving  the  reasons  of 
the  Court  for  setting  aside  the  verdict  said  that  "  it  is  a  car- 


xxiv 


INTRODUCTORY  CHAPTER. 


dinal  principle  that  when  it  appears  that  a  party  has  de- 
stroyed an  instrument  or  document  the  presumption  is  that 
if  it  had  been  produced  it  would  have  been  against  his  in- 
terest. Contra  spoliatorem  omnia  presumunter.  A  person 
who  has  wilfully  destroyed  the  highest  evidence  ought  not 
to  be  permitted  to  enjoy  the  benefit  of  the  rule  admitting 
secondary  evidence." 


JUDICIAL  HISTORY 
MASSACHUSETTS. 


OF 


CHAPTER  I. 

THE  COLONY  OF  NEW  PLYMOUTH. 

On  the  10th  of  April,  1606,  King  James  issued  let- 
ters patent  to  two  companies,  granting  to  them  a  strip 
of  territory  along  the  American  coast  one  hundred 
miles  wide  and  extending  from  the  34th  to  the  45th 
degree  of  latitude.  To  the  Southern  Virginia  Com- 
pany, composed  of  "certain  knights,  gentlemen  and 
merchants  in  and  about  our  city  of  London,"  he 
granted  that  part  of  the  territory  between  the  34th 
and  41st  degrees ;  and  to  the  Northern  Virginia  Com- 
pany, composed  of  "  certain  knights,  gentlemen,  mer- 
chants and  their  associates  in  and  about  our  cities  of 
Bristol,  Exor  and  our  town  of  Plymouth  and  other 
places,"  he  granted  that  part  between  the  3Sth  and 
45th  degrees.  The  three  degrees  between  the  3Sth 
and  41st,  granted  to  both  colonies,  were  to  be  pos- 
sessed by  the  first  colony  occupying  them. 

The  Southern  Virginia  Company,  whose  jurisdiction 
extended  from  about  the  latitude  of  Cape  Fear  to  that 

1 


2 


JUDICIAL  HISTORY 


of  New  York,  issued  a  patent,  or  grant,  dated  Febru- 
ary 2,  1619,  to  John  Pierce  and  bis  associates  for  the 
benefit  of  the  Pilgrim  church,  a  portion  of  which  was 
then  preparing  for  its  departure  from  Holland  to  Amer- 
ica. The  Pilgrim  Company,  -for  reasons  which  it  is  not 
necessary  in  this  narrative  to  explain,  landed  at  Plymouth 
outside  of  their  grant  and  within  the  jurisdiction  of  the 
Northern  Virginia  Company ;  and  thus  occupying  ter- 
ritory without  right  they  sent  an  application  by  the 
Mayflower  on  her  return  for  a  patent  or  grant  from 
that  company.  Before  the  application  had  reached  its 
destination,  King  James,  on  the  3d  of  November,  1620, 
issued  a  new  charter  to  the  Northern  Virginia  Company, 
under  the  name  of  "  The  council  established  at  Plymouth 
in  the  county  of  Devon,  for  the  planting,  ordering,  rul- 
ing and  governing  of  New  England  in  America."  By 
this  council  a  patent  or  grant  was  issued  June  1,  1621, 
and  sent  over  in  the  Fortune,  which  reached  Plymouth 
in  November,  1621. 

Before  referring  more  particularly  to  this  patent,  the 
attention  of  the  reader  must  be  called  to  the  charter  of 
King  James  under  which  the  Virginia  Company  derived 
its  authority,  in  order  that  a  clear  understanding  may 
be  had  of  the  foundation  on  which  the  institutions  of 
New  England,  including  the  judiciary  system,  were 
finally  built.  The  full  text  of  this  charter  will  be 
found  in  the  Appendix,  marked  "  A." 

The  reader's  attention  must  next  be  called  to  the 
patent  issued  by  the  council  for  New  England  to  the 
Pilgrim  Colon}^,  and  brought  over  in  the  Fortune  in 
November,  1621.  It  is  preserved  in  Pilgrim  Hall  in 
Plymouth,  and  is  engrossed  on  parchment  bearing  the 
signatures  of  the  Duke  of  Lenox,  the  Marquis  of  Ham- 
ilton, the  Earl  of  Warwick,  Lord  Sheffield,  the  Earl  of 
Arundell  and  Sir  Ferdinando  Gorges.    One  signature, 


OF  MASSACHUSETTS. 


3 


probably  that  of  the  Marquis  of  Buckingham,  is  miss- 
ing. The  full  text  of  this  patent  will  also  be  found  in 
the  Appendix  marked  "  B." 

On  the  arrival  of  the  Mayflower  in  Cape  Cod  har- 
bor the  following  compact,  rendered  necessary  by  the 
fact  that  the  Colony  was  outside  of  the  jurisdiction  of 
the  company  whose  patent  they  had,  was  drawn  up  and 
signed  : 

"  In  the  name  of  God,  Amen. 

"  We  whose  names  are  underwritten,  the  loyal  suhjects  of  our 
dread  sovereign  Lord  King  James,  by  the  grace  of  God  of  Great 
Britain,  France  and  Ireland,  lung,  defender  of  the  faith,  etc.,  hav- 
ing undertaken  for  the  glory  of  God  and  advancement  of  the  Chris- 
tian faith,  and  honor  of  our  king  and  country,  a  voyage  to  plant 
the  first  colony  in  the  northern  parts  of  Virginia,  do  by  these 
presents  solemnly  and  mutually,  in  the  presence  of  God  and  one 
of  another,  covenant  and  combine  ourselves  into  a  civil  body  poli- 
tic, for  our  better  ordering  and  preservation  and  furtherance  of 
the  ends  aforesaid;  and  by  virtue  hereof  to  enact,  constitute  and 
frame  such  just  and  equal  laws,  ordinances,  acts,  constitutions 
and  offices  from  time  to  time  as  shall  be  thought  most  meet  and 
convenient  for  the  general  good  of  the  colony;  unto  which  we 
promise  all  due  submission  and  obedience.  In  witness  whereof 
we  have  hereunto  subscribed  our  names  at  Cape  Cod  the  11th  of 
November,  in  the  year  of  the  reign  of  our  sovereign  lord  King 
James  of  England,  France  and  Ireland  the  eighteenth  and  of 
Scotland  the  fifty-fourth  Anuo  Domini  1620.' 1 

This  compact,  to  which  too  much  significance  has 
been  attached,  was  only  a  temporary  expedient,  and 
was  of  no  use  after  the  arrival  of  the  patent  issued  by 
the  Council  for  New  England  in  November,  1621.  Its 
phraseology,  so  far  as  it  related  to  the  government  of 
the  Colony,  was  probably  copied  from  the  patent  of  the 
Southern  Virginia  Company  in  their  possession,  which 
probably,  like  the  new  patent,  gave  them  authority  "  to 
establish  such  laws  and  ordinances  as  are  for  their  bet- 
ter government  and  the  same  by  such  officer  or  officers 


4 


JUDICIAL  HISTORY 


as  they  shall  by  most  voices  elect  and  choose  to  put  in 
execution." 

On  the  13th  of  January,  1629,  the  Council  for  New 
England  issued  a  new  patent  to  the  Plymouth  Colony 
defining  the  territorial  limits  of  the  Colony  of  New 
Plymouth.  This  patent  granted  to  the  colonists  "all 
that  parte  of  New  England  in  America  aforesaid  and 
tracte  and  tractes  of  land  that  lye  within  or  betweene  a 
certain  rivolet  or  rundlett  there  commonly  called  Coa- 
hassett  alias  Conahassett  towards  the  North,  and  the 
river  commonly  called  Naragansets  river  towards  the 
South,  and  the  great  westerne  ocean  towards  the  East, 
and  betweene  and  within  a  straight  line  directly  extend- 
inge  upp  into  the  maine  lande  towards  the  West  from  the 
mouth  of  the  said  river  called  Naragansetts  river  to  the 
utmost  limitts  and  bounds  of  a  cuntry  or  place  in  New 
Englande  called  Pokenacutt  alias  Sewamsett  doe  extend, 
togeather  with  one  half  of  the  said  river  called  Naragan- 
setts, and  the  said  rivolett  or  rundlett  called  Coahassett 
alias  Conahassett  and  all  lands,  rivers,  waters,  havens, 
creeks,  ports,  fishings,  fowlings,  and  all  hereditaments, 
proffitts,  comodities  and  emoluments  whatsoever  situate 
lyinge  and  beinge  or  ariseinge  within  or  betweene  the 
said  limitts  and  bounds  or  any  of  them."  The  text  of 
this  patent  will  be  found  in  the  Appendix  marked  "  C." 

In  language  better  understood,  the  colony  line,  begin- 
ning at  a  point  on  Massachusetts  Bay  between  Cohasset 
and  Scituate,  ran  across  to  Providence  River,  thence 
down  Narragansett  Bay,  through  Seconnet  River,  and 
thence  through  Vineyard  Sound  to  the  ocean.  Under 
the  charter  of  Charles  the  Second,  issued  in  1663  to 
Rhode  Island  and  the  Providence  Plantations,  Rhode 
Island  claimed  all  that  part  of  the  above  territory  which 
now  includes  Fall  River,  Freetown,  Tiverton,  Little 
Compton,  Somerset,  Warren,  Bristol,  Barrington  and 


OF  MASSACHUSETTS. 


5 


parts  of  Berkele}*-,  Dighton  and  Kehoboth.  A  con- 
troversy at  once  ensued,  which  was  partially  con- 
cluded by  the  decision  of  a  Royal  Commission  in  1741, 
which  took  the  town  of  Bristol  with  other  towns  out  of 
the  old  Plymouth  Colony  territory.  When  the  Colony 
was  divided  in  1685  into  the  three  counties,  Barnstable, 
Bristol  and  Plymouth,  Bristol  was  made  the  shire  of  the 
county  which  took  its  name,  and  consequently,  when 
that  town  was  given  to  Rhode  Island,  Taunton  took  its 
place  as  the  shire  of  the  county.  It  is  only  necessary 
to  say  further  in  connection  with  the  controversy  that 
it  was  not  definitely  settled  until  1861,  when  after  a 
continuance  of  nearly  two  hundred  years,  the  present 
boundary  between  Massachusetts  and  Rhode  Island  on 
the  old  Plymouth  Colony  line  was  established. 

On  the  authority  of  the  Royal  Charter  issued  to  the 
Council  for  New  England  and  of  the  two  patents  issued 
by  the  Council  to  the  Plymouth  Colony,  the  institutions 
of  the  Colony,  including  its  judiciary  were  established. 
It  is  a  remarkable  fact  that  without  a  royal  charter  the 
Colony  continued  until  1686  a  free,  independent,  demo- 
cratic commonwealth  without  the  slightest  interference 
from  the  home  government,  making  laws,  establishing 
courts,  choosing  officers  by  the  people,  incorporating 
towns  and  performing  all  the  functions  of  a  state  as  fully 
and  completely  as  Massachusetts  does  to-day.  On  the 
19th  of  December,  1686,  Sir  Edmund  Andros  arrived  in 
Boston  with  a  commission  as  Governor  of  New  England, 
and  during  his  administration  the  order  of  affairs  was 
temporarily  disturbed,  but  resumed  in  1688  on  the  acces- 
sion of  William  and  Mary  to  the  throne. 

It  is  difficult  to  fix  the  dates  of  the  passage  of  laws 
relating  to  the  courts  of  the  Colony.  The  colonial  laws 
were  revised  four  times  in  1636,  1658,  1671  and  1684. 
The  revision  in  1636  was  prepared  by  a  committee 


6 


JUDICIAL  HISTORY 


composed  of  Governor  Wm.  Bradford  and  assistants, 
and  Wm.  Brewster,  Ralph  Smith,  John  Done  and  John 
Jenney,  of  Plymouth ;  Jonathan  Brewster  and  Christo- 
pher Wadsworth,  of  Duxbury,  and  James  Cud  worth 
and  Anthony  Annable,  of  Scituate.  The  revision  of 
I  1658  was  prepared  by  Wm.  Collier,  Timothy  Hatherly, 
John  Alden,  James  Cud  worth  and  Josiah  Winslow; 
that  of  1671,  which  was  a  complete  digest  of  all  laws 
then  in  force,  was  prepared  by  Governor  Thomas 
Prence,  Thomas  Hinckley  and  John  Walley,  and  that 
of  1684  by  Governor  Thomas  Hinckley,  Barnabas  Lo- 
throp,  Capt.  Walley,  Capt.  Lothrop  and  Capt.  Thomas. 
These  various  revisions  contained  re-enactments  of  laws 
passed  since  the  previous  revision  with  perhaps,  others 
added. 

The  first  law  relating  to  the  courts  was  passed  De- 
cember 17,  1623,  and  provided  that  all  criminal  facts 
and  all  matters  of  trespass  and  debts  should  be  tried  by 
a  jury  of  twelve  men.  In  1633  it  was  enacted  that 
wills  be  proved  before  the  Governor  and  Council  with- 
in one  month  after  the  death  of  the  testator  and  that  a 
full  inventory  of  estates  be  filed  before  the  issue  of  let- 
ters of  administration.  In  the  same  year  the  fee  of  a 
juryman  was  fixed  at  six  pence  and  of  the  foreman 
twelve  pence. 

In  1636  a  grand  jury  was  provided  for  and  the  Gov- 
ernor and  Assistants  were  authorized  to  determine  civil 
cases  involving  not  more  than  forty  shillings  and  crim- 
inal cases  involving  a  small  fine,  all  trials  before  that 
time  having  been  had  in  the  General  Court. 

At  various  times  before  the  division  in  1685  of  the 
Colony  into  the  three  counties  of  Barnstable,  Bristol 
and  Plymouth,  there  were  four  courts  organized,  the 
General  Court,  the  Court  of  Assistants,  the  Selectmen's 
Court  and  a  Court  of  Admiralty.    The  General  Court 


OF  MASSACHUSETTS. 


7 


up  to  1639  was  composed  of  the  Governor,  Assistants, 
and  all  the  freemen  of  the  Colony,  and  hence  its  name. 
At  that  time,  besides  Plymouth,  the  Colony  included 
the  incorporated  towns  of  Duxbury,  Scituate,  Sand- 
wich, Yarmouth,  Taunton  and  Barnstable,  and  it  was 
found  inconvenient  for  the  freemen  to  attend  in  a  body 
at  Plymouth.  The  Governor  and  Assistants  were 
chosen  by  the  people,  and  the  people  in  the  General 
Court  enacted  the  laws.  In  this  respect  the  govern- 
ment of  the  Plymouth  Colony  was  more  democratic 
than  that  in  the  early  days  of  the  Massachusetts  Colony 
in  which  the  people  chose  the  Assistants,  the  Assistants 
the  Governor,  and  the  Governor  and  Assistants  enacted 
the  laws. 

In  1639  owing  to  the  inconvenience  of  the  existing 
system  the  following  law  was  passed  : 

"Whereas  complaint  was  made  that  the  ffreemen  were 
put  to  many  inconveniences  and  great  expense  by  their  con- 
tinuall  attendance  at  the  Courts,  It  is  therefore  enacted  by 
the  Court  for  the  ease  of  the  severall  colonies  and  Townes 
within  the  Government,  That  every  Towne  shall  make  choyce 
of  two  of  their  ffreemen,  and  the  Towne  of  Plymouth  of 
foure  to  be  Committee  or  Deputies,  to  joyne  with  the  Bench 
to  enact  and  make  all  snch  lawes  and  ordnances  as  shall  be 
judged  to  be  good  and  wholesome  for  the  whole.  Provided 
that  the  lawes  they  doe  enact  shal  be  ppounded  one  Court,  to 
be  considered  upon  untill  the  next  Court,  and  then  to  be 
confirmed  if  they  shal  be  approved  of  (except  the  case  re- 
quire present  confirmacon).  And  if  any  act  shall  be  con- 
firmed by  the  Bench  and  Committees,  which,  upon  further 
deliberacon,  shall  prove  prejudicial  to  the  whole,  That  the 
ffreemen  at  the  next  elecon  Court  after  meeting  together, 
may  repeale  the  same  and  enact  any  other  usefull  for  the 
whole ;  and  that  every  Township  shall  beare  their  Commit- 
tees charges ;  and  that  such  as  are  not  ffreemen,  but  have 


8 


JUDICIAL  HISTORY 


taken  the  Oath  of  fidelitie,  and  are  masters  of  famylies 
and  Inhabitants  of  the  said  Townes,  as  they  are  to  beare 
their  parte  in  the  charges  of  their  Committees,  so  to  have 
a  vote  in  the  choyce  of  them,  provided  they  choose  them 
only  of  the  ffreemen  of  the  said  Towne  whereof  they  are ; 
but  if  any  such  Committees  shall  be  insufficient  or  trouble- 
some, that  then  the  Bench  and  the  other  Committees  may 
dismisse  them,  and  the  Towne  to  choose  other  ffreemen  in 
their  place." 

In  this  law  is  to  be  found  the  origin  of  the  represen- 
tative system  of  Massachusetts  which  has  in  later  years 
been  departed  from  by  the  establishment  of  representa- 
tive districts  and  the  loss  of  absolute  town  representa- 
tion. 

Notwithstanding  the  establishment  of  the  new  Gen- 
eral Court,  composed  of  deputies  or  delegates,  the  whole 
body  of  freemen  continued  to  be  the  electors  and  chose 
the  officers.  And  even  the  laws  which  the  General 
Court  enacted  might  be  repealed  by  the  freemen  at 
their  next  annual  election  day. 

The  freemen  of  the  Colony  who  held  the  right  of 
suffrage  were  at  first  those  who  signed  the  compact  in 
the  cabin  of  the  Mayflower,  on  the  11th  of  November, 
1620,  and  afterwards  included  such  as  might  be  admit- 
ted by  a  majority  vote.  In  1633  there  were  sixty-eight 
freeman,  and  in  the  succeeding  two  years  twenty-three 
were  added.  In  1656  it  was  ordered  that  "  such  as  are 
admitted  to  be  freemen  of  the  corporation,  the  deputies 
of  such  towns  where  such  persons  live  shall  propound 
them  to  the  court  being  such  as  have  been  also  ap- 
proved by  the  freemen  in  that  town  where  such  per- 
sons live."  And  in  1658  these  words  were  added,  "  and 
upon  satisfactory  testimony  given  from  the  freemen  of 
these  towns  by  their  deputies,  such  to  be  forthwith  re- 
ceived without  any  further  delay  at  the  same  court 


OF  MASSACHUSETTS. 


9 


when  such  testimony  is  given."  In  1658  it  was  further 
"  enacted  by  the  Court  and  the  authorities  thereof  that 
all  such  as  shall  be  admitted  freemen  of  this  corpora- 
tion shall  stand  one  whole  year  propounded  to  the 
court,  viz. :  to  be  propounded  at  one  June  court  and  to 
stand  so  propounded  until  the  June  court  following, 
and  then  to  be  admitted  if  the  court  shall  not  see  cause 
to  the  contrary."  In  the  same  year  it  was  also  enacted 
that  all  such  as  refuse  to  take  the  oath  of  fidelity  as 
Quakers,  or  such  as  are  manifest  encouragers  of  such, 
shall  have  no  voice  in  choice  of  public  officers  in  the 
place  where  they  dwell,  or  shall  be  employed  in  any 
place  of  trust  while  they  continue  such  ;  that  no  Quaker, 
Ranter,  or  any  such  corrupt  person  shall  be  admitted 
to  be  a  freeman  of  this  corporation ;  that  all  such  as 
are  opposers  of  the  good  and  wholesome  laws  of  this 
Colony,  or  manifest  opposers  of  the  true  worship  of  God, 
or  such  as  shall  refuse  to  do  the  country  service,  being- 
called  thereunto,  shall  not  be  admitted  freemen  of  this 
corporation,  being  duly  convicted  of  all  or  any  of  these ; 
and  that  if  any  person  or  persons  are  or  shall  be 
freemen  of  this  corporation  that  are  Quakers,  or  such 
as  are  manifest  encouragers  of  such  and  so  judged  by 
the  court  and  of  the  laws  thereof,  and  such  as  judged 
by  the  court  gravely  scandalous,  as  liars,  drunkards, 
swearers,  etc.,  shall  lose  their  freedom  of  this  corpora- 
tion." Finally  in  1671  it  was  provided  that  "freemen 
must  be  twenty-one  years  of  age,  of  sober  and  peace- 
able conversation,  orthodox  in  the  fundamentals  of  re- 
ligion, and  possessed  of  twenty  pounds  ratable  estate  in 
the  Colony." 

The  sessions  and  jurisdiction  of  the  General  Court 
changed  from  time  to  time,  but  under  a  law  passed  in 
1666  it  was  held  three  times  in  each  year  for  the  trial 
of  causes. 


10 


JUDICIAL  HISTORY 


The  Court  of  Assistants,  composed  of  the  Governor 
and  Assistants,  sat  three  times  in  each  year  to  try  cap- 
ital, criminal  and  civil  causes,  and  to  receive  and  try  all 
appeals  from  the  inferior  courts.  It  had  the  power  to 
summon  juries  and  appoint  clerks,  and  the  Governor 
could  call  the  court  at  any  time  for  the  trial  of  capital 
cases,  and  to  try  cases  at  the  request  of  strangers  or 
foreigners.  This  court  could  also  try  such  equity  cases 
as  could  not  be  relieved  by  common  law. 

The  Selectmen's  Court  was  established  in  1661,  under 
a  law  which 

"  Provided  that  in  every  Towne  of  this  Jurisdiction 
there  be  three  or  five  Celectmen  chosen  by  the  Towns- 
men out  of  the  freemen,  such  as  shal  be  approved  by  the 
court ;  for  the  better  managing  of  the  afaires  of  the 
respective  Townships;  and  that  the  Celectmen  in  every 
Towne  or  the  major  parte  of  them  are  heerby  Impowered 
to  heare  and  determine  all  debtes  and  differences  arising 
between  p'son  and  p'son  within  their  respective  Town- 
shipes  not  exceeding  forty  shillings ;  as  also  they  are 
heerby  Impowered  to  heare  and  determine  all  differences 
existing  betwixt  any  Indians  and  the  English  of  their 
respective  Townshipes  about  damage  done  in  corne  by 
the  cowes,  swine  or  any  other  beastes  belonging  to  the 
Inhabitants  of  the  said  respective  Townshipes;  and  that 
the  determination  of  the  abovesaid  differences  not  being 
satisfied  as  was  agreed,  the  party  wronged  to  repaire 
to  some  Magistrate  for  a  warrant  to  recover  such  award 
by  distraint :  It  is  f  urther  enacted  by  the  court  That  the 
said  Celectmen  in  every  Township  approved  by  the  court 
or  any  of  them,  shall  have  power  to  give  forth  sumons 
in  his  Majestie's  name  to  require  any  p'son  complained 
of  to  attend  the  hearing  of  the  case  and  to  sumon  wit- 
nesses to  give  Testimony  upon  that  account  and  to  deter- 
mine of  the  controversies  according  to  legal  1  evidence; 


OF  MASSACHUSETTS. 


11 


and  that  the  p'sons  complaining  shall  serve  the  sumons 
themselves  upon  the  p'sons  complained  against ;  and  in 
the  case  of  their  non  appearance  to  proceed  on  notwith- 
standing in  the  hearing  and  determination  of  such  con- 
troversyes  as  comes  before  them ;  and  to  have  twelve 
pence  apiece  for  every  award  they  agree  upon." 

The  Admiralty  Court  was  composed  of  the  Governor 
and  three  or  four  assistants,  with  "  such  other  substan- 
tial persons  as  the  Governor  might  appoint,  for  the  trial 
of  treasons,  piracies,  felonies,  robberies,  murders  or  con- 
federacies on  the  sea  or  in  any  haven,  creek  or  bay." 

In  addition  to  the  above  courts  there  was  a  sort  of  Indian 
Court  established  in  16S2  by  sl  law  which  provided  that 
in  each  town  where  Indians  live  some  person  may  be 
appointed  by  the  Court  of  Assistants  to  have  an  over- 
sight of  the  Indians  in  the  town  and  with  the  Tithing- 
men  hear  all  causes  between  the  Indians  except  capital 
and  real,  an  appeal  from  their  decision  to  the  Court  of 
Assistants  being  allowed. 

After  the  incorporation  of  the  three  counties  in  1685  it 
was  ordered  "  that  in  each  county  there  shall  be  kept  an- 
nually two  county  courts,  which  courts  shall  be  kept  by 
the  magistrates  (Assistants)  living  in  the  several  coun- 
ties, or  by  any  other  magistrate  that  can  attend  the 
same,  or  by  such  as  the  General  Court  shall  appoint 
from  time  to  time,  and  to  make  a  court  there  shall  be 
present  not  less  than  three  magistrates  or  associates, 
and  in  no  case  shall  judgment  be  given  without  there 
be  two  consenting,  or  the  major  part  if  more  than  four 
judges ;  and  in  the  absence  of  the  Governor  or  Deputy 
Governor,  the  eldest  magistrate  shall  be  president  of  the 
court ;  which  court  shall  have,  and  hereby  have  power 
to  order  the  choice  of  juries  of  grand  inquest  and  trials 
in  their  several  counties,  and  to  constitute  clerks  and 


12 


JUDICIAL  HISTORY 


other  needful  officers  ;  the  County  Treasurer  to  be  ap- 
pointed and  allowed  of  by  said  court  annually."  It  was 
further  ordered  that  the  County  Courts  "shall  have 
and  hereby  have  power  to  hear,  try  and  determine  accord- 
ing to  law  all  matters,  actions,  causes  and  complaints, 
whether  civil  or  criminal,  in  cases  not  extending  to  life 
or  banishment  or  matters  of  divorce."  And  it  was 
also  ordered  "  that  all  deeds,  bargains,  mortgages  for 
houses,  rents,  lands  not  already  recorded  in  the  public 
records,  or  that  shall  not  be  recorded  before  the  first 
County  Court  of  each  county,  shall  or  may  be  recorded 
in  the  county  where  they  lie  by  the  County  Recorder." 
The  County  Courts  were  given  power  also  to  settle  and 
dispose  according  to  law  of  the  estate  of  any  person  who 
died  intestate  within  the  county  and  to  grant  letters  of 
administration  and  take  the  probate  of  wills. 

In  the  above  law  establishing  the  County  Courts  the 
Deputy  Governor  is  mentioned  as  presiding  in  the  ab- 
sence of  the  Governor,  and  that  officer  is  the  only  one 
having  a  judicial  function  not  yet  mentioned  in  this  nar- 
rative. In  the  early  days  of  the  colony  there  was  no 
provision  for  such  an  officer.  By  a  law  passed  in  1636 
the  Governor  was  authorized  with  the  consent  of  the 
Assistants  to  appoint  one  of  their  number  to  govern 
during  his  absence,  and  in  1651  absolute  authority  was 
given  to  the  Governor  to  depute  any  one  of  the  Assist- 
ants whom  he  shall  think  fit  to  be  in  his  absence  Deputy 
Governor.  In  1679  it  was  enacted  that  the  Deputy 
Governor  should  be  annually  chosen. 

As  with  the  exception  of  the  Selectmen's  Court  and 
the  Indian  Court,  the  Governor,  Deputy  Governor 
and  Assistants  furnished  the  material  for  the  judicial 
system  of  the  colony  the  names  of  the  incumbents  of 
those  offices  are  included  in  this  narrative. 


OF  MASSACHUSETTS. 


13 


Governors. 

John  Carver,  1620  to  1621 ;  William  Bradford,  1621 
to  1632;  Edward  Winslow,  1633  to  1634;  Thomas 
Prence,  1631  to  1635  ;  William  Bradford,  1635  to  1636  ; 
Edward  Winslow,  1636  to  1637;  William  Bradford, 
1637  to  1638  ;  Thomas  Prence,  1638  to  1639 ;  William 
Bradford,  1639  to  1611;  Edward  Winslow,  1611  to 
1645  ;  William  Bradford,  1615  to  1657  ;  Thomas  Prence, 
1657  to  1673  ;  Tosiah  Winslow,  1673  to  1680;  Thomas 
Hinckley,  16S0  to  1692. 

Deputy  Governors. 

Thomas  Hinckley,  1680  to  1681 ;  James  Cud  worth, 
1681  to  16S2 ;  William  Bradford  2d,  16S2  to  1692. 

Assistants. 

Isaac  Allerton  of  Plymouth  1621  and  1631;  Ed- 
ward Winslow  of  Marshfield,  1634-35,  37,  38,  41, 
43,  45,  50 ;  William  Bradford  of  Plymouth,  1634-35, 
37,  38,  44,  58,  61 ;  John  Alden  of  Duxbury,  1632,  34, 
39,  50,  S6;  Samuel  Fuller  of  Plymouth,  1632;  John 
Howland  of  Plymouth,  1634-35 ;  Miles  Standish  of 
Duxbury,  1632-35,  37,  41,  45,  46 ;  Thomas  Prence  of 
Plymouth,  1632-35,  37,  39,  56;  Stephen  Hopkins  of 
Plymouth,  1634-35  ;  William  Collier  of  Duxbury,  1635, 
37,  39,  51,  54,  56,  58,  65  ;  Timothy  Hatherly  of  Scituate, 
1636,  37,  39,  5S ;  John  Brown  of  Rehoboth,  1636,  38, 
55 ;  John  Jenney  of  Plymouth,  1637,  38,  43 ;  John  At- 
wood  of  Plymouth,  1638 ;  Edmund  Freeman,  of  Sand- 
wich, 1640-45 ;  William  Thomas  of  Marshfield,  1642, 
44, 46, 50 ;  Thomas  Willett  of  Plymouth,  1651-54,  56,  64 ; 
James  Cud  worth  of  Scituate,  1656,  57,  74,  80;  Josiah 
Winslow  of  Marshfield,  1657,  72;  Thomas  Southworth 
of  Plymouth,  1655,  57,  71 ;  Thomas  Hinckley  of  Barn- 


14 


JUDICIAL  HISTORY 


stable,  1658,  79  ;  John  Freeman  of  Eastham,  1667,  78, 
82,  86;  Nathaniel  Bacon  of  Barnstable,  1667,  73;  Con- 
stant Southworth  of  Duxbury,  1672-78  ;  James  Browne 
of  Kehoboth,  1673,  83;  Daniel  Smith  of  Eehoboth, 
1679,  83  ;  Barnabas  Lothrop  of  Barnstable,  1681,  86 ; 
John  Thacher  of  Yarmouth,  16S2-86;  John  Walley 
of  Bristol,  16S4-86. 

Precisely  what  the  powers  and  duties  of  the  Governor 
and  Assistants  were  in  the  early  years  of  the  colony  is 
not  known.  In  1636  they  were  defined  by  a  law  of 
which  the  following  is  the  text : 

"  The  office  of  the  Governor  for  the  time  being  consists  in 
the  execncon  of  such  laws  and  ordinances  as  are  or  shall  be 
made  and  established  for  the  good  of  the  corporacon  accord- 
ing to  the  severall  bounds  and  limits  thereof,  viz  :  In  calling 
together  or  advising  with  the  Assistants  or  Councell  of  the 
said  corporacon  upon  such  materiall  occasion  (or  so  seeming 
to  him)  us  time  shall  bring  forth.  In  which  assembly  and 
all  others,  the  Governor  to  propound  the  occasion  of  the 
Assembly  and  have  a  double  voice  therein.  If  the  Assistants 
judge  the  case  too  great  to  be  decided  by  them  and  refer  it 
to  the  Generall  Court,  then  the  Governor  to  sumon  a  Court 
by  warning  all  the  ffreemen  aforesaid  that  are  then  extant, 
and  there  also  to  propound  causes  and  goe  before  the  Assist- 
ants, in  the  examination  of  pticulars,  and  to  propound  such 
sentence  as  shall  be  determined  :  further,  it  shall  be  lawfull 
for  him  to  arrest  and  comit  to  ward  any  offenders,  provided 
that  with  all  convent  specie  he  shall  bring  the  cause  to  hearing, 
either  of  the  Assistants  or  General  Court  according  to  the 
nature  of  the  offence.  Allso  it  shall  be  lawfull  for  him  to 
examine  any  suspicious  persons  for  evill  against  the  Colony 
as  to  intercept  or  oppose  such  as  he  conceiveth  may  lead  to 
the  overthrow  of  the  same.  And  this  officer  continue  on  one 
whole  yeare  and  no  more  without  renewing  by  elecon." 

Until  1624  only  one  assistant  was  chosen,  but  in  that 


OF  MASSACHUSETTS. 


15 


year  at  the  request  of  the  Governor  four  were  added 
and  later  the  law  required  the  election  of  seven.  In 
1636  a  law  was  passed  providing  that  "  the  office  of  an 
Assistant  for  the  time  being  consisteth  in  appearing  at 
the  Governor's  summons  and  in  giving  his  best  advice, 
both  in  public  court  and  in  private  council  with  the 
Governor,  for  the  good  of  the  Colonies  within  the  limits 
of  the  Government.  ISot  to  disclose  but  to  keep  secret 
such  things  as  concern  the  public  good,  and  shall  be 
thought  meet  to  be  concealed  by  the  Governor  and 
Council  of  Assistants.  In  having  a  special  hand  in  the 
examination  of  public  offenders  and  in  contriving  the 
affairs  of  the  Colony.  To  have  a  voice  in  the  censuring 
of  such  offenders  as  shall  not  be  brought  to  public 
Court.  That  if  the  Governor  have  occasion  to  be  absent 
from  the  Colony  for  a  short  time,  by  the  Governor  with 
the  rest  of  the  assistants,  he  may  be  deputed  to  govern 
in  the  absence  of  the  Governor.  Also  it  shall  be  law- 
full  for  him  to  examine  and  commit  to  ward  where  any 
occasion  ariseth  when  the  Governor  is  absent,  provided 
the  person  be  brought  to  further  hearing  with  all  con- 
venient speed  before  the  Governor  or  the  rest  of  the 
Assistants.  And  it  shall  be  lawful  for  him  in  his  Maj- 
esties name  to  direct  his  warrants  to  any  constable 
within  the  Government  who  ought  faithfully  to  execute 
the  same  according  to  the  nature  and  tenure  thereof. 
And  may  bind  over  persons  for  matters  of  crime  to 
answer  at  the  next  ensuing  court  of  his  Majestie  after 
the  fact  committed  or  the  persons  apprehended." 

On  the  arrival  of  Sir  Edmund  Andros  on  the  19th 
of  December,  1686,  as  Governor  of  New  England  the 
old  colonial  government  was  suspended  and  he  appoint- 
ed thirty-nine  councillors  among  whom  were  Thomas 
Hinckley,  Barnabas  Lothrop,  William^  Bradford,  2d., 
Daniel  Smith,  John  Walley  and  Nathanief  'Clark,  of  the 


1(3 


JUDICIAL  HISTORY 


Plymouth  Colony  and  delegated  the  power  of  making 
and  exacting  the  laws  to  the  Governor  and  council  sub- 
ject to  the  approval  of  the  crown.  He  declared  all 
public  lands  vested  in  the  King,  and  the  Governor  and 
Council  were  made  a  court  of  record,  and  jurisdiction  in 
cases  concerning  lands  and  not  involving  more  than 
forty  shillings  was  given  to  Justices  of  the  Peace.  He 
also  established  a  "  Quarterly  Sessions  Court "  to  be 
held  by  the  several  justices  in  their  respective  counties, 
and  an  "  Inferior  Court  of  Common  Pleas"  to  be  held 
in  each  county  by  a  judge  assisted  by  two  or  more 
justices  of  the  county,  with  a  limitation  of  jurisdiction 
in  Boston  to  twenty  pounds  where  the  court  was  to  sit 
once  in  two  months,  and  in  other  counties  to  ten  pounds 
where  it  was  to  sit  annually.  In  addition  to  these 
courts  the  "  Superior  Court  of  Judicature  "  was  estab- 
lished with  jurisdiction  over  all  civil  and  criminal  mat- 
ters in  the  colony  and  in  which  no  action  could  be  be- 
gun for  the  recovery  of  less  than  ten  pounds,  unless  a 
question  of  freehold  was  involved.  This  court  was  to 
be  held  in  Boston,  Cambridge,  Charlestown,  Plymouth, 
Bristol,  Newport,  Salem,  Ipswich,  Portsmouth,  Fal- 
mouth, (Portland),  Northampton  and  Springfield,  and 
Joseph  Dudley  was  appointed  Chief  Justice.  Besides 
a  Court  of  Chancery,  special  Courts  of  Oyer  and  Term- 
iner were  appointed  at  various  times.  The  Superior 
Court  of  Judicature  had  three  Judges  and  the  Judges 
associated  with  the  Chief  Justice  were  at  first  William 
Stoughtonand  Peter  Bulkley,  and  afterwards  at  various 
times  Samuel  Shrimpton,  Simon  Lynde,  Charles  Lidget, 
John  West  and  John  Usher.  George  Farwell  was 
made  Attorney  General.  When  the  news  of  the 
English  revolution  of  16S8  and  of  the  accession  of 
William  and  Mary  reached  Boston,  Andros  was  arrested 


OF  MASSACHUSETTS. 


17 


and  sent  to  England,  and  the  old  colonial  administra- 
tion of  affairs  was  resumed. 

Joseph  Dudley,  Chief  Justice  of  the  Superior  Court 
of  Judicature  above  mentioned  was  the  son  of  Governor 
Thomas  Dudley,  and  was  born  in  Roxbury,  Mass.,  July 
23,  1647,  and  graduated  at  Harvard  in  1665.  He  at 
first  studied  theology,  but  abandoned  it  for  a  political 
career.  He  was  a  representative  from  1673  to  1675, 
assistant  from  1676  to  16S5  and  one  of  the  Commission- 
ers of  the  United  Colonies  from  1677  to  1681.  He  was 
appointed  by  James  the  Second,  President  of  Massa- 
chusetts Bay,  etc.,  in  1686  and  in  1687  was  appointed 
by  Andros  Chief  Justice.  On  the  accession  of  William 
and  Mary  he  was  sent  to  England  and  afterwards  ap- 
pointed in  1690  Chief  Justice  of  New  York.  A  little 
later  he  was  made  Deputy  Governor  of  the  Isle  of 
Wight  and  continued  in  that  office  eight  years.  In 
1701  he  was  member  of  Parliament,  and  from  1702  to 
1715  was  Governor  of  the  Province  of  Massachusetts 
Bay.    He  died  in  Roxbury,  Mass.,  April  2,  1720. 

William  Stoughton,  one  of  the  Associate  Justices,  was 
born  in  Dorchester,  Mass.,  in  1631  or  1632,  and  gradu- 
ated in  Harvard  in  1650.  For  some  time  a  clergyman, 
he  was  an  Assistant  from  1671  to  1676,  an  agent  of  the 
Massachusetts  Colony  in  England  in  1677,  Chief  Justice 
of  the  Superior  Court  from  1692  to  1701,  a  member  of 
the  Council  from  1693  to  1701,  Lieutenant  Governor  of 
the  Province  of  Massachusetts  Bay  from  1692  to  1701, 
and  was  at  various  times  a  selectman  of  Dorchester. 
He  died  July  7,  1701. 

Peter  Bulkley,  Associate  Justice,  was  a  son  of  Eev. 
Peter  Bulkley,  and  was  born  in  Concord,  Mass.,  Au- 
gust 12,  1643.  He  graduated  at  Harvard  in  1660,  was 
speaker  of  the  House  of  Deputies  from  May  19, 1669  to 
May  31,  1671,  and  again  from  May  15,  1672  to  May  7, 
2 


18 


JUDICIAL  HISTORY 


1673.  He  was  an  Assistant  from  1667  to  1681  and  died 
at  Concord  in  May,  1688. 

Charles  Lidgett,  Associate  Justice,  married  Mary, 
daughter  of  William  Hester  of  Southwark,  England, 
and  died  in  London,  April  9,  1698,  leaving  three  chil- 
dren, Peter,  Charles  and  Ann. 

Samuel  Shrimpton,  Associate  Justice,  was  the  son  of 
a  brazier,  and  born  in  Boston  in  1643.  He  died  Febru- 
ary 5,  1698. 

Simon  Lynde,  Associate  Justice,  was  a  Boston  man, 
and  the  father  of  Benjamin  Lynde,  afterward  Chief 
Justice. 

John  West,  Associate  Justice,  was  an  attorney  from 
New  York. 

John  Usher,  Associate  Justice,  was  a  son  of  Hezekiah 
Usher,  and  was  born  in  Boston  in  April,  1618,  and  was 
by  occupation  a  bookseller.    He  died  September  5, 1726. 

George  Farwell,  Attorney  General,  came  from  New 
York,  and  was  sent  to  England  with  Andros  in  Febru- 
ary, 1689. 

With  the  record  of  the  two  solitary  cases  of  alleged 
witchcraft  tried  within  the  Plymouth  Colony  this  chap- 
ter will  close. 

"General  Court,  March  5,  1660. 
"Joseph  Sylvester  of  Marshfield  doth  acknowledge 
to  owe  and  to  stand  indebted  unto  his  majesty,  his 
heirs,  etc.,  in  the  sum  of  twenty  pounds  sterling  in  good 
and  current  pay ;  the  condition  of  the  obligation  is  that 
in  case  Dina  Sylvester  shall  and  doth  appear  at  the 
Court  of  Assistants  to  be  holden  at  Plymouth  the  first 
Tuesday  in  May  next  and  attend  the  Court's  determin- 
ation in  reference  to  a  complaint  made  by  Win.  Holmes 
and  his  wife  about  a  matter  of  defamation ;  that  then 
this  obligation  to  be  void  or  otherwise  to  remain  in  full 
force  and  virtue. 


OF  MASSACHUSETTS. 


19 


"  In  witness  the  above  bounden  hath  hereunto  set  his 
hand  the  9th  of  March,  1660. 

"  Joseph  Sylvester. 

"  Dina  Sylvester  being  examined  saith  the  bear  she 
saw  was  about  a  stone's  throw  from  the  highway  when 
she  saw  it ;  and  being  examined  and  asked  what  man- 
ner of  tail  the  bear  had,  she  said  she  could  not  tell  for 
his  head  wTas  towards  her. 

"May  9,  1661,  concerning  the  complaint  of  Wm. 
Holmes  of  Marshfield  against  Dinah  Sylvester  for  accus- 
ing his  wife  to  be  a  witch,  the  Court  here  sentenced 
that  the  said  Dina  shall  either  be  publicly  whipped  and 
pay  the  sum  of  five  pounds  to  the  said  Wm.  Holmes,  or 
in  case  she,  the  said  Dina  Sylvester  shall  make  public 
acknowledgement  of  her  fault  in  the  premises,  that  then 
she  shall  bear  only  the  charge  the  Plaintiff  hath  been 
at  in  the  prosecution  of  his  said  suit.  The  latter  of 
which  was  chosen  and  done  by  the  said  Dinah  Sylvester, 
viz.,  a  public  acknowledgement." 

"  March  6,  1676-7. 

"  The  Inditement  of  Mary  Ingham. 

"  Mary  Ingham :  thou  art  indited  by  the  name  of 
Mary  Ingham  the  wife  of  Thomas  Ingham,  of  the  towne 
of  Scituate  in  the  jurisdiction  of  New  Plymouth  for  that 
thou  haveing  not  the  feare  of  God  before  thyne  eyes, 
hast  by  the  healp  of  the  divill  in  a  way  of  witchcraft 
or  sorcery,  maliciously  procured  much  hard  mischeiffe 
and  paine  unto  the  body  of  Mehittable  Wood  worth,  the 
daughter  of  Walter  Wood  worth  of  Scituate  aforesaid, 
and  some  others  and  particularly  causing  her,  the  said 
Mehittable  to  fall  into  violent  fitts  and  causing  great 
paine  unto  severall  parts  of  her  body  att  severall  times, 
soe  as  shee  the  said  Mehittable  Woodworth  hath  bin  al- 
most bereaved  of  her  sencis  and  hath  greatly  languished, 
to  her  much  suffering  thereby,  and  the  procuring  of 


20 


JUDICIAL  HISTOEY 


great  greiffe,  sorrow  and  charge  to  her  parents;  all 
which  thou  hast  procured,  and  don  against  the  law  of 
God,  and  to  his  great  dishonor,  and  contrary  to  our  sov 
lord  the  Kinge,  his  crowne  and  dignitee. 

"  The  said  Mary  Ingham  did  putt  herselfe  on  the 
tryall  of  God  and  the  countrey  and  was  cleared  of  this 
inditement  in  process  of  law  by  a  jury  of  twelve  men 
whose  names  follow  : 


"  Mr.  Thomas  Huckens, 
"  John  Wadsworth, 
"  John  Howland, 
"  Abraham  Jackson, 
"  Benajah  Pratt, 
"  John  Blacke, 


Marks  Snow, 
Joseph  Bartlett, 
John  Richmond, 
Jerud  Talbutt, 
John  Foster, 
Seth  Pope." 


CHAPTER  II. 


COLONY  OF  MASSACHUSETTS  BAY. 

The  Charter  of  the  Northern  Virginia  Company 
granted  by  King  James  in  1606,  and  its  new  charter  as 
the  "  Council  established  at  Plymouth  in  the  County  of 
Devon  for  the  planting,  ordering,  ruling  and  governing 
of  New  England  in  America "  have  been  already  re- 
ferred to,  the  latter  of  which  may  be  found  as  stated  in 
the  first  chapter  in  the  Appendix.  On  the  30th  of  De- 
cember, 1622,  the  Council  for  New  England  granted  to 
Robert  Gorges  all  that  part  of  the  main  land  "com- 
monly called  or  known  by  the  name  of  Messachusi- 
ach  "  which  was  described  as  situated  "  upon  the  north- 
east side  of  the  bay  called  or  known  by  the  name  of 
the  Messachusett."  Gorges  was  appointed  by  the  Coun- 
cil in  1623  Lieutenant  General  of  New  England  and  ar- 
rived with  "  passengers  and  families  "  in  Massachusetts 
Bay  in  September  of  the  same  year. 

On  the  19th  of  March  1627-8  the  Council  issued  a 
patent  to  Sir  Henry  Roswell,  Sir  John  Young,  Thomas 
Southcott,  John  Humphrey,  John  Endicott  and  Simon 
Whitcomb,  including  all  the  land  extending  from  three 
miles  north  of  the  Merrimac  River  to  three  miles  south 
of  the  Charles  River.  This  patent  or  grant  conflicted 
with  that  of  Gorges,  but  the  conflicting  claims  were  sat- 
isfactorily settled.  The  patent  to  Sir  Henry  Roswell  is 
not  in  existence  so  far  as  is  known,  and  none  of  its 
terms  have  been  disclosed  except  so  far  as  they  are  re- 
cited in  the  royal  charter,  which  passed  the  seals  March  4, 

(21) 


JUDICIAL  HISTOEY 


1628-9.  One  of  the  earliest  movements  of  the  company- 
was  the  withdrawal  of  Sir  Henry  Koswell,  Sir  John 
Younge  and  Thomas  Southcott  and  the  assignment  of 
their  interest  to  John  Winthrop,  Isaac  Johnson,  Mathew 
Cradock,  Thomas  Goffe  and  Sir  Richard  Saltonstall,  and 
among  the  new  members  were  Thomas  Dudley,  Nicho- 
las West,  Thomas  Sharpe,  William  Browne  and  William 
Colbron.  The  affairs  of  the  company  were  first  man- 
aged in  England,  and  John  Endicott  was  sent  out  to  New 
England,  arriving  at  Salem  in  the  ship  Abigail,  on  the 
6th  of  September,  1628.  His  colony  was  merely  a  band 
of  emigrants  sent  over  by  what  may  be  called  the  Mas- 
sachusetts Company,  acting  under  the  grant  from  the 
Council  for  New  England  and  before  the  issue  of  the 
royal  charter.  On  the  4th  of  March  1628-9,  a  charter 
was  granted  the  company  which,  for  a  better  under- 
standing of  the  authority  under  which  the  institutions 
of  Massachusetts  Bay,  including  those  of  a  judicial  char- 
acter were  established,  is  inserted  in  full  in  the  Appen- 
dix marked  "  D." 

After  the  issue  of  the  charter  to  the  company  of  which 
John  Endicott  was  one  and  to  which  his  Salem  Colony 
was  subservient  he  was  permitted  to  continue  as  the  local 
Governor  until  Winthrop  arrived  with  his  larger  com- 
pany bearing  the  charter  from  the  King.  After  the 
issue  of  the  charter  at  a  meeting  of  the  Massachusetts 
Company  held  on  the  28th  of  July,  1629,  Mathew  Crad- 
ock the  Governor  named  in  the  charter  read  certain 
propositions  giving  reasons  for  transferring  the  govern- 
ment to  New  England.  At  the  next  meeting  held  on 
the  28th  of  August  in  the  same  year  the  Deputy  Gov- 
ernor put  the  question  as  follows,  "As  many  of  you  as 
desire  to  have  the  patent  and  the  government  of  the 
plantation  to  be  transferred  to  New  England  so  as  it 
may  be  done  legally  hold  up  your  hands ;  so  many  as. 


OF  MASSACHUSETTS. 


23 


will  not,  hold  up  your  hands."  The  decision  is  thus  en- 
tered on  the  records  of  the  company :  "  Where  by  erec- 
tion of  hands  it  appeared  by  the  general  consent  of  the 
company  that  the  government  and  patent  should  be 
settled  in  New  England  and  accordingly  an  order  to  be 
drawn  up." 

Two  days  before  the  vote  was  taken,  on  the  26th  of 
August,  the  following  agreement  was  executed : 

"  XTpon  due  consideration  of  the  State  of  the  Planta- 
tion now  in  hand  for  New  England  wherein  we  whose 
names  are  hereunto  subscribed  have  engaged  ourselves, 
and  having  weighed  the  greatness  of  the  work  in  regard 
of  the  consequence,  God's  glory  and  the  Church's  good ; 
as  also  in  regard  of  the  difficulties  and  discouragements 
which  in  all  probabilities  must  be  forecast  upon  the 
prosecution  of  this  business ;  considering  withal  that 
this  whole  adventure  grows  upon  the  joint  confidence 
we  have  in  each  other's  fidelity  and  resolution  herein, 
so  as  no  man  of  us  would  have  adventured  it  without 
assurance  of  the  rest ;  now  for  the  better  encourgement 
of  ourselves  and  others  that  shall  join  with  us  in  this 
action,  and  to  the  end  that  every  man  may  without 
scruple  dispose  of  his  estate  and  affairs  as  may  best  fit 
his  preparation  for  this  voyage,  it  is  fully  and  faithfully 
agreed  amongst  us  and  every  one  of  us  doth  hereby  freely 
and  sincerely  promise  and  bind  himself  in  the  word  of  a 
Christian,  and  in  the  presence  of  God,  who  is  the  searcher 
of  all  hearts,  that  we  will  so  really  endeavor  the  prose- 
cution of  this  work,  as  by  God's  assistance  we  will  be 
ready  in  our  persons  and  with  such  of  our  several  fami- 
lies as  are  to  go  with  us,  and  such  provision  as  we  are 
able  conveniently  to  furnish  ourselves  withal,  to  embark 
for  the  said  plantation  by  the  1st  of  March  next,  at  such 
port  or  ports  of  this  land  as  shall  be  agreed  upon  by  the 


24 


JUDICIAL  HISTORY 


company  to  the  end  to  pass  the  seas  (under  God's  pro- 
tection), to  inhabit  "and  continue  in  New  England  ;  pro- 
vided always  that  before  the  last  of  September  next 
the  whole  government  together  with  the  patent  for  the 
said  Plantation,  be  first,  by  an  order  of  court  legally 
transferred  and  established  to  remain  with  us  and 
others  which  shall  inhabit  upon  the  said  Plantation ; 
and  provided  also,  that  if  any  shall  be  hindered  by 
such  just  and  inevitable  let  or  other  cause  to  be  al- 
lowed by  three  parts  of  four  of  those  where  names  are 
hereunto  subscribed,  then  such  persons,  for  such  times 
and  during  such  lets  to  be  discharged  of  this  bond.  And 
we  do  further  promise,  every  one  for  himself,  that  shall 
fail  to  be  ready  through  his  own  default  by  the  day 
appointed,  to  pay  for  every  day's  default  the  sum  of 
£3  to  the  use  of  the  rest  of  the  company  who  shall  be 
ready  by  the  same  day  and  time, 

"  Richard  Saltonstall,  Thomas  Sharpe, 

"  Thomas  Dudley,  Increase  Nowell, 

"  William  Yassall,  John  Winthrop, 

"  Nicholas  West,  William  Pinchon, 

"  Isaac  Johnson,  William  Browne, 

"  John  Humphrey,  William  Colbron." 

On  the  20th  of  October,  1629,  a  General  Court  of 
the  Massachusetts  Company  was  held  at  the  house  of 
Thomas  Goffe,  Deputy  Governor,  the  object  of  which 
was  to  choose  a  new  Governor,  Deputy  Governor  and 
eighteen  Assistants.  The  record  of  the  meeting  is  as 
follows : 

"  And  now  proceeding  to  the  election  of  a  new  Gov- 
ernor Deputy  and  Assistants  which  upon  serious  delibera- 
tion hath  been  and  is  conceived  to  be  for  the  special  good 
and  advancement  of  their  affairs,  and  having  received 
extraordinary  great  commendations  of  Mr.  John  Win- 


OF  MASSACHUSETTS. 


25 


throp  both  for  his  integrity  and  sufficiency  as  being 
one  every  way  well  fitted  and  accomplished  for  the 
place  of  Governor,  did  put  in  nomination  for  that  place 
the  said  Mr.  John  AVinthrop,  Sir  R.  Saltonstall,  Mr. 
Isaac  Johnson  and  Mr.  John  Humphrey ;  and  the  said 
Mr.  Winthrop  was  with  a  general  vote  and  full  consent 
of  this  court  by  erection  of  hands  chosen  to  be  Governor 
for  the  ensuing  year  to  begin  on  this  present  day ;  who 
was  pleased  to  accept  thereof  and  thereupon  took  the 
oath  to  that  place  appertaining.  In  like  manner  and 
with  like  free  and  full  consent  Mr.  John  Humphrey 
Avas  chosen  Deputy  Governor,  and  Sir  Ii.  Saltonstall, 
Mr.  Isaac  Johnson,  Mr.  Thomas  Dudley,  Mr.  Jo :  Endi- 
cott,  Mr.  Nowell,  Mr.  William  V assail,  Mr.  William 
Pinchon,  Mr.  Sam:  Sharpe,  Mr.  Edw:  Bossiter,  Mr. 
Thomas  Sharpe,  Mr.  John  Eevell,  Mr.  Matt :  Cradock, 
Mr.  Thomas  Goffe,  Mr.  Aldersey,  Mr.  John  Venn,  Mr. 
Nath:  Wright,  Mr.  Theoph  :  Eaton,  Mr.  Tho:  Adams 
were  chosen  to  be  Assistants ;  which  said  Deputy  and 
the  greatest  part  of  the  said  Assistants  being  present 
took  the  oaths  to  their  said  places  appertaining  respec- 
tively." 

The  departure  of  Winthrop  for  New  England  oc- 
curred on  the  8th  of  April,  1630,  and  with  about  fifteen 
hundred  colonists  he  arrived  in  Massachusetts  Bay  on 
the  12th  of  June.  On  his  arrival  the  colony  under  the 
administration  of  Endicott  was  merged  in  the  Massa- 
chusetts Colony  of  which  it  was  a  part,  and  which  now 
with  the  charter  in  its  possession  set  up  a  government 
vested  according  to  the  terms  of  the  charter  in  a  Gov- 
ernor, Deputy  Governor  and  Assistants,  with  John  Win- 
throp as  its  executive  head. 

Doubts  have  been  entertained  by  many  historical 
writers  whether  it  was  intended  that  the  charter  and 
corporation  should  be  transferred  to  New  England. 


26 


JUDICIAL  HISTORY 


Hutchinson  in  his  history  says,  "It  is  evident  from  the 
charter  that  the  original  design  of  it  was  to  constitute 
a  corporation  in  England  like  to  that  of  the  East  India 
Company  and  other  great  companies,  with  powers  to 
settle  plantations  within  the  limits  of  the  territory  under 
such  form  of  government  and  magistracy  as  should  be 
fit  and  necessary.  The  first  step  in  sending  out  Mr. 
Endicott,  appointing  him  a  Council,  giving  him  commis- 
sion, instructions,  etc.,  was  agreeable  to  this  construc- 
tion of  the  charter."  But  Hutchinson  overlooks  the 
fact  that  Endicott  came  over  before  the  charter  was 
issued.  The  opinion  of  Hutchinson  has  been  concurred 
in  by  Chalmers,  Eobertson,  Grahame,  Hildreth  and 
Young;  and  Washburn  in  his  Judicial  History  of  Mas- 
sachusetts says,  "  it  was  in  fact  designed  that  the  corpo- 
ration should  exist  in  England  and  that  colonies  should 
be  sent  out  like  that  at  Salem,  while  the  officers  of  the 
company  should  continue  to  be  elected  and  to  reside  in 
England."  On  the  other  hand  Dr.  Palfrey,  the  author 
of  the  History  of  New  England,  and  Professor  Joel  Par- 
ker of  Cambridge  have  expressed  the  opinion  that  the 
charter  was  actually  drawn  with  a  design  on  the  part 
of  the  patentees  to  be  used  either  in  England  or  in  New 
England,  there  being  an  absence  of  any  language  locat- 
ing the  corporation  in  England.  The  writer  has  rea- 
sons which  he  thinks  sufficient  to  justify  his  opinion 
that  the  terms  of  the  charter  were  not  violated  in 
transferring  it  to  New  England.  There  was  evidently 
either  a  silent  acquiescence  of*  King  Charles  in  the  trans- 
fer or,  whatever  the  original  intent,  a  royal  assent  given. 
All  the  above  waiters  seem  to  have  overlooked  the 
agreement  dated  August  26,  1629,  the  text  of  which 
has  been  given,  in  which  the  following  words  occur : 
"  That  before  the  last  of  September  next  the  whole  gov- 
ernment together  with  the  patent  for  the  said  Planta- 


OF  MASSACHUSETTS. 


27 


tion  be  first  by  an  order  of  court  legally  transferred 
and  established  to  remain  with  us  and  others  which  shall 
inhabit  upon  the  said  Plantation."  It  may  be  fairly 
presumed  that  after  such  a  declaration  an  order  of  court 
was  obtained  the  record  of  which  has  never  been  pub- 
lished. Again  the  provision  for  the  oaths  to  be  taken 
by  the  officers  of  the  company  should  be  considered. 
The  charter  provided  that  the  first  Governor,  Mathew 
Cradock  should  take  the  oath  before  one  or  more  of 
the  Masters  of  the  Court  of  Chancery,  and  that  after- 
wards his  successor  should  take  the  oath  before  the 
Deputy  Governor  or  two  of  his  Assistants.  These  dif- 
ferent methods  of  taking  the  oath  suggest  the  contin- 
gency of  a  removal  of  the  company  to  New  England, 
where  no  Master  in  Chancery  would  be  accessible. 

It  has  also  been  doubted  whether  the  charter  con- 
tained any  authority  to  erect  judicatories  or  courts  for 
the  probate  of  wills  or  with  admiralty  jurisdiction,  or  to 
incorporate  towns,  colleges  or  schools,  all  which  powers 
were  exercised,  together  with  the  power  of  inflicting 
capital  punishment.  Washburn  says  that  "  Nothing  is 
said  in  the  charter  in  regard  to  establishing  judicatories, 
nor  does  it  recognize  a  judicial  system  of  any  kind  be- 
yond the  mention  that  is  made  of  magistrates."  But 
it  provides  that  "  the  officers  and  ministers  of  the  com- 
pany shall  have  full  power  to  correct,  punish,  pardon, 
govern  and  rule  according  to  laws  established  by  the 
company."  The  power  to  punish  certainly  carries  with^ 
it  the  power  to  establish  courts  for  the  ascertainment 
of  guilt. 

Besides,  it  must  be  remembered  that  the  colony  was 
established  as  well  under  its  grant  from  the  Council  for 
New  England  as  under  the  charter,  and  that  we  are  en- 
tirely ignorant  of  the  terms  of  that  grant.  It  is  quite 
possible  that  the  grant  gave  the  colony  by  authority  of  its 


28 


JUDICIAL  HISTORY 


own  charter  from  King  James  broader  powers  than 
those  expressed  in  the  colonial  charter.  The  Plymouth 
Colony  without  a  charter  exercised  the  same  powers  as 
those  exercised  by  the  Massachusetts  Colony,  under  its 
grant  from  the  Council  alone,  and  it  has  never  been 
claimed  that  the  Council  in  making  the  grant  exceeded 
its  charter  authority. 

As  this  is  not  a  history  of  the  Massachusetts  Colony 
it  is  not  necessary  to  enter  at  length  into  the  com- 
plaints made  against  the  Colony  and  the  demand  for 
the  return  of  the  charter.  Winthrop  says  in  his  His- 
tory of  New  England  under  date  of  1639  :  "  We  were 
much  afraid  this  year  of  a  stop  in  England  by  reason  of 
the  complaints  which  had  been  sent  against  us,  and  the 
great  displeasure  which  the  archbishops  and  others  the 
commissioners  of  plantations  had  conceived  and  uttered 
against  us  both  for  these  complaints  and  also  for  our 
not  sending  home  our  patent.  But  the  Lord  wrought 
for  us  beyond  our  expectations,  for  the  petition  which 
we  returned  in  answer  of  the  order  for  our  patent  was 
read  before  the  Lords  and  well  accepted,  as  is  before 
expressed ;  and  ships  came  to  us  from  England  and 
divers  other  ports  with  great  store  of  people  and  pro- 
visions of  all  sorts.1' 

It  was  provided  in  the  charter  that  the  officers  of  the 
colony  should  consist  of  a  Governor,  Deputy  Govern- 
or and  eighteen  Assistants,  to  be  chosen  annually  by  a 
General  Court  consisting  of  said  officers  and  all  the 
freemen  of  the  colony,  on  the  last  Wednesday  in  Easter 
term.  The  General  Court  was  to  sit  four  times  in  each 
year,  Easter,  Hilary,  Trinity  and  Michas.  In  addi- 
tion to  the  above  courts  four  monthly  courts  were  to 
be  held  by  the  Governor,  Deputy  Governor  and  Assist- 
ants "  for  the  better  ordering  and  directing  of  affairs." 
The  first  monthly  court  or  Court  of  Assistants  was  held 


OF  MASSACHUSETTS. 


29 


on  board  the  ship  Arbella  in  Charlestown  harbor,  Au- 
gust 23,  1630. 

The  first  General  Court  was  held  in  Boston  on  the 
]  9th  of  October,  1630,  at  which  meeting  it  was  voted 
that  instead  of  following  the  method  of  election  pre- 
scribed by  the  charter  the  freemen  should  choose  only 
the  Assistants,  and  the  Assistants  choose  out  of  their 
own  number  the  Governor  and  Deputy  Governor,  and 
the  Assistants  should  have  the  power  of  making  the  laws 

and  choosing1  officers  to  execute  them.    This  abroga- 
te o 

tion  of  a  provision  of  the  charter  which  made  the  election 
of  these  latter  officers  a  popular  one  to  the  extent  that 
all  the  freemen  had  a  vote  was  singular,  inasmuch  as  it 
converted  a  democracy  prescribed  by  the  King  into  a 
partial  aristocracy.  The  first  meeting  for  the  election 
of  officers  was  held  on  the  last  Wednesday  in  May, 

1631.  At  a  General  Court  held  on  the  9th  of  May, 

1632,  "  it  was  agreed  upon  by  the  erection  of  hands 
that  the  Governor,  Deputy  Governor  and  Assistants 
should  be  chosen  by  the  whole  court  of  Governor, 
Deputy  Governor,  Assistants  and  freemen,  and  that  the 
Governor  shall  always  be  chosen  out  of  the  Assist- 
ants." At  a  General  Court  held  on  the  llth  of  May, 
1631,  "  it  was  agreed  that  none  but  the  General  Court 
hath  power  to  choose  and  admit  freemen.  That  none 
but  the  General  Court  hath  the  power  to  make  and  es- 
tablish laws  nor  to  elect  and  appoint  officers  as  Gover- 
nor, Deputy  Governor,  Assistants,  Treasurer,  Secretary, 
Captain,  Lieutenants,  Ensigns,  or  any  of  like  moment 
or  to  remove  such  upon  misdemeanor,  as  also  to  set  out 
the  duties  and  powers  of  the  said  officers.  That  none 
but  the  General  Court  hath  power  to  raise  mone}Ts  and 
taxes  and  to  dispose  of  lands,  viz :  to  give  and  confirm 
properties." 

At  the  same  court  it  was  also  ordered  "  that  it  shall 


30 


JUDICIAL  HISTORY 


be  lawfull  for  the  freemen  of  every  plantation  to 
choose  two  or  three  of  each  town  before  every  Gen- 
eral Court,  to  confer  and  prepare  such  public  business 
as  by  them  shall  be  thought  fit  to  consider  at  the  next 
General  Court,  and  that  such  persons  as  shall  be  here- 
after so  deputed  by  the  freemen  of  the  several  planta- 
tions to  deal  in  their  behalf  in  the  public  affairs  of  the 
commonwealth,  shall  have  the  full  power  and  voices  of 
all  the  said  freemen  derived  to  them  for  the  making 
and  establishing  of  laws,  granting  of  lands,  etc.,  and  to 
deal  in  all  other  affairs  of  the  commonwealth  wherein 
the  freemen  have  to  do,  the  matter  of  election  of  mag- 
istrates and  other  officers  only  excepted,  wherein  every 
freeman  is  to  give  his  own  voice.''  Thus  a  General 
Court  composed  of  deputies  was  authorized  for  all  pur- 
poses except  the  election  of  officers,  for  which  the  votes 
of  all  the  freemen  were  required.  As  towns  became 
settled  and  it  became  inconvenient  to  attend  the  Gen- 
eral Court  for  the  purpose  of  electing  officers,  at  a  Gen- 
eral Court  held  on  the  3d  of  March,  1635-6  it  was 
ordered  "that  the  General  Court  to  be  holden  in  May 
next  for  election  of  magistrates,  etc.,  shall  be  holden  at 
Boston,  and  that  the  towns  of  Ipswich,  Newbury,  Salem, 
Saugus,  Weymouth  and  Hingham,  shall  have  liberty 
to  stay  so  many  of  their  freemen  at  home  for  the  safety 
of  their  town  as  they  judge  needful,  and  that  the  said 
freemen  that  are  appointed  by  the  town  to  stay  at  home 
shall  have  liberty  for  this  court  to  send  their  voices  by 
prox}7."  The  passage  of  this  law  was  only  one  step 
towards  a  general  election  law  which  was  passed  on 
the  9th  of  March,  1636-7.  The  record  of  the  court 
held  at  that  date  states  that  "This  court,  taking  into 
serious  consideration  the  great  danger  and  damage  that 
may  accrue  to  the  state  by  all  the  freemen's  leaving 
their  plantations  to  come  to  the  place  of  elections,  have 


OF  MASSACHUSETTS. 


31 


therefore  ordered  that  it  shall  be  free  and  lawful  for 
all  freemen  to  send  their  votes  for  elections  by  proxy 
the  next  General  Court  in  May,  and  so  for  hereafter, 
which  shall  be  done  in  this  manner:  The  deputies 
which  shall  be  chosen  shall  cause  the  freemen  of  their 
towns  to  be  assembled  and  then  to  take  such  freemen's 
votes  as  please  to  send  by  proxy,  for  every  magistrate, 
and  seal  them  up  severally,  subscribing  the  magistrate's 
name  on  the  back  side,  and  so  to  bring  them  to  the 
court  sealed  with  an  open  roll  of  the  names  of  the  free- 
men that  so  send  by  prox}^" 

Until  1631  the  only  courts  held  in  the  colony  were 
the  General  Court  and  the  Court  of  Assistants.  Up  to 
that  time  trials  for  ordinary  offences  were  had  in  the 
General  Court  and  capital  trials  in  the  Court  of  Assist- 
ants. In  the  autumn  of  1630  in  cases  of  capital  crimes 
juries  were  impaneled,  and  on  the  9th  of  November  in 
that  year  a  Court  of  Assistants  was  held,  consisting  of 
the  Governor,  Deputy  Governor,  Sir  Richard  Salton- 
stall,  Mr.  Ludlow,  Capt.  Endicott,  Mr.  Coddington,  Mr. 
Pinchon  and  Mr.  Bradstreet,  at  which  Walter  Palmer, 
who  had  been  indicted  for  manslaughter,  was  tried  be- 
fore a  jury  consisting  of  Mr.  Edmond  Lockwood,  "Wil- 
liam Rockwell,  Christopher  Conant,  William  Phelps, 
William  Gallard,  John  Hoskins,  Richard  Morris,  Wil- 
liam Balston,  William  Cheesborough,  John  Page,  John 
Balsh  and  Lawrence  Leach,  and  acquitted. 

In  1631  it  was  enacted  "that  the  General  Court,  con- 
sisting of  magistrates  and  deputies,  is  the  chief  civil 
power  of  the  commonwealth;  which  only  hath  power 
to  raise  money  and  taxes  upon  the  whole  country  and 
dispose  of  lands,  viz. :  to  give  and  confirm  properties 
appertaining  to  and  immediately  derived  from  the  coun- 
try ;  and  may  act  in  all  affairs  of  this  commonwealth 
according  to  such  power,  both  in  matters  of  counsel, 


32 


JUDICIAL  HISTORY 


making  the  laws  and  matters  of  judicature,  by  im- 
peaching and  sentencing  any  person  or  persons  accord- 
ing to  law  and  by  serving  and  hearing  any  complaints 
orderly  presented  against  any  person  or  court ;  and  it 
is  agreed  that  this  court  will  not  proceed  to  judgment 
in  any  cause,  civil  or  criminal,  before  the  deputies  have 
taken  this  oath  following :  '  I  do  swear  by  the  most  great 
and  dreadful  name  of  the  ever  living  God,  that  in  all 
cases  wherein  I  am  to  deliver  my  vote  or  sentence 
against  any  criminal  offence  or  between  parties  in  any 
civil  case,  I  will  deal  uprightly  and  justly  according  to 
my  judgment  and  conscience ;  and  I  will,  according  to 
my  skill  and  ability,  assist  in  all  other  public  affairs  of 
this  court  faithfully  and  truly  according  to  the  duty  of 
my  place,  when  I  shall  be  present  to  attend  the  service.'  " 
The  members  of  the  Massachusetts  Colony  were  of 
course  believers  that  the  Scriptures  embodied  the  word 
of  God  and  were  infallible.  Consequently  they  believed 
it  their  duty  to  make  every  offence  capital  which  the 
Bible  declared  should  be  punished  by  death.  Their  list 
of  capital  crimes  numbered  sixteen,  and  nearly  all  were 
expressly  based  on  passages  of  Scripture.  They  were 
Idolatry,  in  obedience  to  Exodus  xxii.  20,  Deuteronomy 
xiii.  6,  10,  and  xvii.  2,  6;  Witchcraft,  Exodus  xxii.  18, 
Leviticus  xx.  27,  Deuteronomy  xviii.  10, 11 ;  Blasphemy, 
Leviticus  xxiv.  15, 16 ;  Murder,  Exodus  xxi.  12, 13,  Num- 
bers xxxv.  31 ;  Manslaughter,  Leviticus  xxiv.  17,  Num- 
bers xxxv.  20,  21 ;  Poisoning,  Exodus  xxi.  14 ;  Bestial- 
ity, Leviticus  xx.  15,  16;  Sodonry,  Leviticus  xx.  13; 
Adultery,  Leviticus  xx.  19  and  xviii.  20,  Deuteronomy 
xxii.  23,  27 ;  Man  stealing,  Exodus  xxi.  16 ;  False  wit- 
ness, Deuteronomy  xix.  16  and  xviii.  16 ;  Kebellion, 
Numbers  xvi.,  2d  Samuel,  iii ;  same,  xviii.  and  xx.  ; 
cursing  and  smiting  of  parents  by  children  above  six- 
teen years  of  age,  Exodus  xxi.  17,  Leviticus  xx.  9,  Exo- 


OF  MASSACHUSETTS. 


33 


dus  xxi.  15 ;  Stubbornness  of  children  above  sixteen 
years,  Deuteronomy  xxii.  20,  21 ;  Rape ;  Arson. 

It  is  difficult  to  assign  a  satisfactory  reason  for  the 
milder  code  which  prevailed  in  the  Plymouth  Colony,  in 
which  until  the  migration  into  the  colony  from  Massa- 
chusetts obtained  control  of  legislation  in  the  General 
Court  the  offences  punishable  with  death  were  not  half 
as  many  as  in  Massachusetts.  Their  belief  in  the  infalli- 
bility of  the  Scriptures  must  have  been  as  thorough  as 
that  of  their  neighbors,  but  it  is  undeniable  that  their 
long  residence  in  Holland  mellowed  and  softened  their 
natures  and  led  them  to  look  with  a  forgiving  spirit  on 
the  frailties  of  their  fellow  men. 

On  the  3d  of  March,  1635-6  the  jurisdiction  of  the 
General  Court  was  restricted  by  an  enactment  concern- 
ing Inferior  Courts  and  Courts  of  Assistants  after  which 
the  General  Court  was  chiefly  a  Court  of  Appeal.  The 
enactment  provided  "  That  there  shall  be  four  courts 
kept  every  quarter,  1st  at  Ipwich,  to  which  Newbury 
shall  belong ;  2nd  at  Salem  to  which  Saugus  shall  be- 
long ;  3d  at  New  Towne  to  which  Charlton  (Charles- 
town)  Concord,  Medford  and  Watertown  shall  belong ; 
4th  at  Boston  to  which  Koxburv,  Dorchester,  Wey- 
mouth and  Hingham  shall  belong,  and  that  every  of 
these  courts  shall  be  kept  by  such  magistrates  as  shall 
be  dwelling  in  or  near  the  said  towns  and  by  such  other 
persons  of  worth  as  shall  from  time  to  time  be  appointed 
by  the  General  Court  so  as  no  court  shall  be  kept 
without  one  magistrate  at  the  least  and  that  none  of 
the  magistrates  be  excluded  who  can  and  will  attend 
the  same ;  yet  the  General  Court  shall  appoint  which 
of  the  magistrates  shall  specially  belong  to  ever}7"  of  the 
said  courts.  Such  persons  as  shall  be  joined  as  asso- 
ciates to  the  magistrates  in  the  said  court  shall  be  chosen 
by  the  General  Court  out  of  a  greater  number  of  such 
3 


34 


JUDICIAL  HISTORY 


as  the  several  towns  shall  nominate  to  them,  so  as  there 
may  be  in  every  of  the  said  courts  so  many  as  (with  the 
magistrates)  may  make  five  in  all.  These  courts  shall 
try  all  civil  causes  whereof  the  debt  or  damage  shall  not 
exceed  £10,  and  all  criminal  causes  not  concerning  life, 
member  or  banishment.  And  if  any  person  shall  find 
himself  grieved  with  the  sentence  of  any  of  the  said 
courts  he  may  appeal  to  the  next  great  quarter  court 
provided  that  he  put  in  sufficient  caution  to  present  his 
appeal  and  to  abide  the  sentence  of  the  magistrates  in  . 
the  said  great  Quarter  Court  who  shall  see  that  all  such 
that  shall  bring  any  appeal  without  just  cause  be  ex- 
emplarily  punished."  These  were  called  Inferior  Courts 
and  the  first  was  to  be  held  on  the  last  Tuesday  in  June 
and  the  others  on  the  last  Tuesday  in  September,  De- 
cember and  March  respectively.  It  was  also  provided 
/  that  "  there  shall  be  four  great  quarter  courts  kept 
\  yearly  at  Boston  by  the  Governor  and  the  rest  of  the 
/^magistrates  (assistants)  the  first  Tuesday  in  the  fourth 
month  called  June,  the  second  the  first  Tuesday  in  Sep- 
tember, the  third  the  first  Tuesday  in  December  and 
the  fourth  the  first  Tuesday  in  the  1st  month  called 
March." 

It  was  further  enacted  that  "all  actions  shall  be  tried  / 
at  that  Court  to  which  the  defendant  belongs,"  and  that^ 
"all  offenders  which  shall  be  in  the  prison  at  Boston  at ^7. 
the  time  of  any  Court  there  holden  shall  be  tried  at  that  ^ 
Court,  except  in  the  warrant  of  his  commitment  he  be  * 
reserved  to  the  great  Quarter  Court.    And  it  shall  be 
lawful  for  the  Governor  or  Deputy  Governor  or  any 
two  magistrates  (upon  special  and  urgent  occasion)  to 
appoint  Courts  to  be  kept  upon  other  days  than  in  the 
order  are  appointed." 

Another  enactment  was  as  follows :  "  And  whereas 
the  most  weighty  affairs  of  this  body  are  now,  by  this 


OF  MASSACHUSETTS. 


35 


present  order  and  others  formerly  made  brought  into 
such  a  way  and  method  as  there  will  not  henceforth  be 
need  of  so  many  General  Courts  to  be  kept  as  formerly, 
it  is  therefore  ordered  that  hereafter  there  shall  be  only 
two  General  Courts  kept  in  a  year,  viz. :  that  in  the  third 
month  called  May  for  elections  and  other  affairs,  and 
the  other  the  first  Wednesday  in  October  for  making- 
laws  and  other  public  occasions  of  the  commonwealth 
provided  that  Governor  may  upon  urgent  occasion  call 
a  General  Court  at  any  other  time  besides  the  two  Courts 
above  mentioned.  And  whereas  it  may  fall  out  that  in 
some  of  these  General  Courts  to  be  holden  by  the  magis- 
trates and  deputies  there  may  arise  some  difference  of 
judgment  in  doubtful  cases,  it  is  therefore  ordered  that 
no  law  order  or  sentence  of  the  magistrate  on  the  one 
parte  and  the  greater  number  of  the  deputies  on  the  other 
part,  and  for  want  of  such  accord  the  cause  or  order 
shall  be  suspended  and  if  either  party  think  it  so  mate- 
rial there  shall  be  forthwith  a  committee  chosen,  the 
one  half  by  the  magistrates  and  the  other  half  by  the 
Deputies  and  the  committee  so  chosen  to  elect  an  um- 
pire, who  together  shall  have  power  to  hear  and  deter- 
mine the  cause  in  question." 

The  last  provision  concerning  the  requisite  assent  to 
any  act  of  the  General  Court  by  a  majority  of  the 
Magistrates,  by  which  term  was  meant  the  Governor, 
Deputy  Governor  and  Assistants,  was  a  step  towards  an 
enactment  passed  in  1641  that  the  Deputies  should  form 
one  branch  of  the  General  Court  and  the  Magistrates 
another,  each  sitting  apart  and  having  a  negative  on 
the  other.  Under  this  arrangement  the  Governor  pre- 
sided over  the  Assistants,  and  the  office  of  Speaker  was 
established  as  the  presiding  officer  in  the  House  of 
Deputies. 

The  judicial  system  of  the  colony  continued  until 


36 


JUDICIAL  HISTORY 


1639  with  the  following  divisions :  First,  the  General 
Court,  composed  of  the  Governor,  Deputy  Governor, 
Assistants  and  Deputies,  sitting  twice  in  each  year; 
second,  the  Court  of  Assistants  or  Great  Quarter  Courts, 
composed  of  the  Governor,  Deputy  Governor  and  As- 
ssistants,  sitting  at  Boston  four  times  in  each  year ;  third, 
the  Inferior  Courts  kept  by  magistrates,  with  Associates 
appointed  by  the  General  Court,  with  the  right  of  ap- 
peal to  the  Courts  of  Assistants  and  last  appeal  to  the 
General  Court,  and  a  Military  Court.  The  last  court, 
of  which  no  mention  has  before  been  made,  was  rather 
a  commission  than  a  court,  and  was  established  by  a 
law  passed  on  the  4th  of  March,  1634-5,  which  pro- 
vided that  "  the  present  Governor  (Thomas  Dudley), 
Deputy  Governor  (Roger  Ludlow),  John  Winthrop, 
John  Humphrey,  John  Haynes,  John  Endicott,  William 
Coddington,  William  Pinchon,  Increase  No  well,  Richard 
Bellingham  and  Simon  Brad  street,  or  the  major  part  of 
them  who  are  deputied  by  this  court  to  dispose  of  all 
military  affairs  whatsoever  shall  have  full  power  and  au- 
thority to  see  all  former  laws  concerning  all  military  men 
and  munitions  executed  and  also  shall  have  full  power  to 
ordain  or  remove  all  military  officers  and  to  make  and 
tender  to  them  an  oath  suitable  to  their  places,  to  dis- 
pose of  all  companies,  to  make  orders  for  them  and  to 
make  and  tender  to  them  and  to  see  that  strict  discipline 
and  training  be  observed,  and  to  command  them  forth 
upon  any  occasion  they  think  meet,  to  make  either  of- 
fensive or  defensive  war,  as  also  to  do  whatsoever  may 
be  further  behoolfull  for  the  good  of  this  plantation,  in 
case  of  any  war  that  may  befall  us,  and  also  that  the 
aforesaid  commissioners  or  the  major  part  of  them  shall 
have  power  to  imprison  or  confine  &riy  that  they  shall 
judge  to  be  enemies  to  the  commonwealth,  and  such  as 
will  not  come  under  command  or  restraint,  as  they  shall 


OF  MASSACHUSETTS. 


37 


be  required,  and  shall  be  lawful  for  the  said  commis- 
sioners to  put  such  persons  to  death.  This  order  to  con- 
tinue till  the  end  of  the  next  General  Court."  This 
Commission  was  extended  from  time  to  time  but  finally 
allowed  to  die.  Its  establishment  was  clearly  in  viola- 
tion of  the  charter  which  gave  the  Massachusetts  Com- 
pany the  power  to  carry  on  a  defensive  but  not  an 
offensive  war. 

The  Magistrates  and  Associates  appointed  by  the  Gen- 
eral Court  to  hold  the  Inferior  Courts  were  as  follows  : 
For  Salem  and  Saugus,  John  Humphrey  and  John  En- 
dicott,  Magistrates  or  Assistants,  with  Captain  Turner, 
Mr.  Scruggs  and  Townsend  Bishop,  Associates ;  for  Ips- 
wich and  Newbury,  Thomas  Dudley,  Kichard  Dummer 
and  Simon  Bradstreet,  Magistrates,  with  Mr.  Saltonstall 
and  Mr.  Spencer,  Associates  ;  for  jSewtown,  Charles- 
town,  Medford  and  Concord,  John  Hajmes,  Roger  Har- 
lakenden  and  Increase  Nowell,  Magistrates,  with  Mr. 
Beecher  and  Mr.  Peakes,  Associates ;  for  Boston,  Box- 
bury,  Dorchester,  Weymouth  and  Hingham,  Richard 
Bellingham  and  William  Coddington,  Magistrates,  with 
Israel  Stoughton,  William  Hutchinson  and  William 
Heath,  Associates. 

In  1639  the  law  establishing  the  Courts  of  Assistants 
or  Great  Quarter  Courts  was  amended  and  it  was  ordered 
*'  that  there  be  two  Courts  of  Assistants  3rearly  kept  in 
Boston  by  the  Governor  or  Deputy  Governor  and  the 
rest  of  the  Magistrates  on  the  first  Tuesday  of  the  first 
month  and  on  the  first  Tuesday  of  the  seventh  month 
(March  and  September),  to  hear  and  determine  all  and 
only  actions  of  appeal  from  Inferior  Courts,  all  causes  of 
divorce,  all  capital  and  criminal  causes  extending  to  life, 
member  or  banishment ;  and  that  justice  be  not  de- 
ferred, nor  the  country  needlessly  charged,  it  shall  be 
lawfull  for  the  Governor,  or  in  his  absence  the  Deputy 


376026 


38 


JUDICIAL  HISTORY 


Governor  (as  they  shall  judge  necessary),  to  call  a 
Court  of  Assistants  for  trial  of  any  malefactor  in  cap- 
ital causes. 

In  the  same  year  County  Courts  were  established, 
though  no  counties  as  the  term  was  afterwards  applied 
had  at  that  time  been  incorporated.    They  were  merely 
the  old  Inferior  Courts  with  a  new  name  and  with  powers 
more  clearly  defined.  They  had  no  reference  to  the  coun- 
ties or  shires  which  were  established  four  years  later,  but 
simply  to  civil  divisions  of  the  colony  made  for  any  pur- 
pose and  not  necessarily  incorporated  as  shires.  After  the 
incorporation  of  the  shires  in  1643  the  jurisdiction  of 
these  courts  was  made  to  conform  to  them.    The  law 
establishing  them  provided  that  "there  shall  be  County 
Courts  held  in  the  several  counties  by  the  magistrates 
living  in  the  respective  counties,  or  any  other  magis- 
trate that  can  attend  the  same,  or  by  such  magistrates 
as  the  General  Court  shall  appoint  from  time  to  time, 
together  with  such  persons  of  worth,  where  there  shall 
be  need,  as  shall  from  time  to  time  be  appointed  by  the 
General  Court  (at  the  nomination  of  the  freemen  of  the 
county)  to  be  joined  in  a  commission  with  the  magis- 
trates so  that  they  may  be  five  in  all,  three  whereof 
may  keep  a  court,  provided  there  be  one  magistrate  ; 
every  of  which  courts  shall  have  full  power  to  hear  and 
determine  all  causes,  civil  and  criminal,  not  extending 
to  life,  member  or  banishment  (which,  with  causes  of 
divorce,  are  reserved  to  the  Court  of  Assistants),  and  to 
make  and  constitute  clerks  and  other  needful  officers, 
and  to  summon  juries  of  inquest  and  trials  out  of  the 
towns  of  the  county,  provided  no  jurors  shall  be  warned 
from  Salem  to  Ipswich,  nor  from  Ipswich  to  Salem." 

In  the  same  year,  1639,  the  Strangers'  Court  was  estab- 
lished under  a  law  which  provided  that  "  the  Governor 
or  Deputy  Governor  with  any  two  magistrates,  or  when 


OF  MASSACHUSETTS. 


39 


the  Governor  or  Deputy  Governor  cannot  attend  it, 
that  any  three  magistrates  shall  have  power  upon  the 
request  of  any  stranger  to  call  a  special  court  to  hear 
and  determine  all  causes,  civil  or  criminal  (triable  in 
any  County  Court  according  to  the  manner  of  proceed- 
ing in  County  Courts),  which  shall  arise  between  such 
strangers,  or  wherein  any  such  strangers  shall  be  part}^  i 
and  all  records  of  such  proceedings  shall  be  transmitted 
to  the  records  of  the  Court  of  Assistants,  to  be  entered 
as  trials  in  other  courts,  which  shall  be  at  the  charge  of 
the  party  or  condemned  in  the  case." 

With  regard  to  the  County  Courts  it  was  provided 
that  "  they  shall  take  care  that  the  Indians  residing  in 
the  several  shires  shall  be  civilized,  and  they  shall  have 
power  to  take  order  from  time  to  time  to  have  them 
instructed  in  the  knowledge  of  God." 

On  the  9th  of  September,  1639,  it  was  ordered  "that 
there  be  records  kept  of  all  wills,  administrations  and 
inventories,  as  also  the  days  of  every  marriage,  birth 
and  death  of  every  person  within  this  jurisdiction." 
These  records  were  kept  by  the  Court  Clerk  and  for 
many  years  after  returns  of  marriages,  births  and  deaths 
were  made  to  the  Town  Clerks  copies  were  transmitted 
to  the  Clerk  of  the  Courts. 

There  was  one  lesser  court  existing  in  1639  which 
has  not  been  mentioned.  It  was  ordered  on  the  6th  of 
September,  1638,  "  that  any  magistrate  (assistant)  in  the 
town  where  he  dwells  may  hear  and  determine  by  his 
discretion  all  causes  wherein  the  debt,  or  trespass  or 
damage,  etc.,  doth  not  exceed  twenty  shillings,  and  in 
such  town  where  no  magistrate  dwells  the  General 
Court  shall  from  time  to  time  nominate  three  men,  two 
whereof  shall  have  like  power  to  hear  and  determine  all 
such  actions  under  twenty  shillings,  and  if  any  of  the 
parties  shall  rind  themselves  grieved  with  any  such  end 


40 


JUDICIAL  HISTORY 


or  sentence,  the}r  may  appeal  to  the  next  quarter  Court 
or  Court  of  Assistants,  etc.,  and  if  any  person  shall  bring 
any  such  action  to  the  Court  of  Assistants  before  he 
hath  endeavored  to  have  it  ended  at  home  (as  in  this 
order  is  appointed)  he  shall  lose  his  action  and  pay  the 
defendant's  costs.  If  no  appeal  be  put  in  the  day  of  the 
sentence  upon  such  small  actions  the  magistrate  or  the 
said  two  chosen  men  shall  grant  execution." 

At  a  meeting  of  the  General  Court  held  in  Boston 
on  the  10th  of  May,  1643,  it  was  ordered  "that  the 
whole  plantation  within  the  jurisdiction  be  divided  into 
four  shires,  to  wit : 

"Essex  Salem,  Lynn,  Enon  (Wenham)  Ipswich, 

Rowley,  Newbury,  Gloucester  and  Cho- 
chicawick  (Andover). 
"Middlesex    Charlestown,    Cambridge,  Watertown, 
Sudbury,  Concord,  Woburn,  Medford, 
Linn  Village  (Reading). 
"Suffolk        Boston,  Roxbury,  Dorchester,  Dedham, 
Braintree,  Weymouth,  Hingham,  Nan- 
tasket  (Hull). 

"  Norfolk       Salisbury,  Hampton,  Haverhill,  Exeter, 
Dover,  Strawberry  Bank  (Portsmouth)." 

Before  going  further  it  is  proper  to  state  that  the 
Norfolk  shire  included  some  towns  within  the  limits  of 
New  Hampshire  when  that  territory  became  a  royal 
province,  and  that  by  an  act  passed  February  4, 
1679-80  the  county  was  extinguished  and  the  Massa- 
chusetts towns  within  its  bounds  were  annexed  to  Essex 
County. 

As  a  further  explanation  of  questions  which  at  this 
point  of  the  narrative  might  arise,  it  is  also  proper  to 
state  that  when  the  present  Norfolk  County  was  in- 
corporated on  the  26th  of  March,  1T93,  all  the  towns  in 


OF  MASSACHUSETTS. 


41 


Suffolk  County  except  Boston  and  Chelsea  were  placed 
in  that  county.  Thus  Hingham  and  Hull  and  Cohasset, 
which  last  had  been  set  off  from  Hingham  and  incorpo- 
rated as  a  town  April  26, 1770,  became  parts  of  Norfolk 
County.  Hingham  and  Hull  being  dissatisfied  with 
their  new  connection  were  at  the  same  session  of  the 
General  Court  exempted  from  the  act  of  incorporation, 
and  after  remaining  a  few  years  in  Suffolk  County  were 
on  their  petition  annexed  to  Plymouth  County. 

Having  reached  the  division  of  the  Colony  into 
counties  in  1643,  it  will  be  well  to  recapitulate  the  for- 
mation of  the  judicial  system  at  that  date.  It  con- 
sisted first  of  the  General  Court  with  appellate  jurisdic- 
tion from  the  Court  of  Assistants  ;  second,  the  Court  of 
Assistants  with  appellate  jurisdiction  from  the  lower 
Courts ;  third,  the  County  Courts  with  the  probate  of 
wills  included  in  their  jurisdiction ;  fourth,  Strangers 
Court,  and  fifth,  Magistrates  Court.  After  the  incorpo- 
ration of  the  Counties  other  laws  were  passed  concern- 
ing these  courts  and  establishing  others,  but  before 
proceeding  to  their  consideration  it  will  be  proper  to 
include  in  this  narrative  a  list  of  the  Governors,  Deputy 
Governors  and  Assistants  during  the  life  of  the  colony, 
who  in  their  official  capacity  constituted  a  large  part  of 
the  judicial  system. 

Governors. 

John  Endicott,  1629-44,  49,  51  to  53,  55  to  64; 
John  Winthrop,  1630  to  33,  37  to  39,  42  to  43,  46 
to  48  ;  Thomas  Dudley,  1634,  40,  45,  50  ;  John  Haynes, 
1635 ;  Henry  Yane,  1636  ;  Richard  Bellingham,  1641, 
54,  65  to  71 ;  John  Leyerett,  1672  to  78  ;  Simon  Brad- 
street,  1679  to  86,  89  to  92.  From  1686  to  1689  Jos- 
eph Dudley  and  Edmund  Andros  had  jurisdiction,  the 
former  as  President  and  the  latter  as  Governor. 


42 


JUDICIAL  HISTORY 


Deputy  Governors. 
Thomas  Dudley,  1629  to  33, 37  to  39,  46  to  49,  51,  52 ; 
Koger  Ludlow,  1634;  Kichard  Bellingham,  1635,  40, 
53,  55  to  64;  John  Winthrop,  1636,44,45;  John  En- 
dicott,  1641  to  43,  50,  54;  Francis  Willoughby,  1665  to 
70;  John  Leverett,  1671,  72;  Samuel  Symonds,  1673 
to  77;  Simon  Bradstreet,  1678;  Thomas  Danforth, 
1679  to  86,  89  to  92. 

Assistants. 

John  Winthrop,  1634;  Thomas  Dudley,  1635,  36, 
41,  to  45 ;  Increase  Nowell,  1630  to  55  ;  Simon  Brad- 
street,  1630  to  75  ;  William  Pinchon,  1630  to  36,  46 
to  50;  John  Endicott,  1630  to  34,  36  to  40,  45  to 
48 ;  William  Coddington,  1630  to  36 ;  Roger  Lud- 
low, 1630  to  33;  Richard  Saltonstall,  1630  to  33; 
Isaac  Johnson,  1630;  Thomas  Sharp,  1630;  William 
Vassall,  1630 ;  Edward  Rossiter,  1630  ;  John  Winthrop, 
Jr.,  1632  to  39,  40  to  49  ;  John  Humphrey,  1632  to  39,  40, 
41 ;  John  Haynes,  1634  to  36 ;  Richard  Bellingham,  1636 
to  39,  42  to  52 ;  Richard  Dummer,  1633,  36 ;  Atherton 
Hough,  1635 ;  Roger  Harlakenden,  1636  to  38  ;  Israel 
Stoughton,1637to43;  Richard  Saltonstall,  Jr.,  1637  to 
49  ;  Thomas  Flint,  1642  to  51,  53 ;  Samuel  Symonds,  1643 
to  72  ;  William  Hibbens,  1643  to  54;  William  Pinchon, 
1642  to  50 ;  Herbert  Pelham,  1645  to  49 ;  Robert  Bridges, 
1647  to  56 ;  Francis  Willoughby,  1650,  51 ;  Edward  Gib- 
bons, 1650,  51 ;  Thomas  AViggin,  1650  to  64;  John  Glover, 
1652,  53 ;  Daniel  Qookin,  1652  to  75 ;  Daniel  Denison 
1653  to  82;  Simon  Willard,  1654  to  75 ;  Humphrey 
Atherton,  1654  to  61 ;  Richard  Russell,  1659  to  76  ; 
Thomas  Danforth,  1659  to  78;  William  Hawthorne, 
1662  to  79  ;  Eleaser  Lusher,  1662  to  72  ;  John  Leverett, 
1665  to  70;  John  Pinchon,  1665  to  86  ;  Edward  Tyng, 
1668  to  80  ;  William  Stoughton,  1671  to  86 ;  Thomas 


OF  MASSACHUSETTS. 


43 


Clarke,  1673  to  77;  Joseph  Dudley,  1676  to  83,  85; 
Peter  Bulkley,  1677  to  84;  Nathaniel  Saltonstall,  1679 
to  86;  Humphrey  Davey,  1679  to  86;  James  Russell, 
1680  to  86  ;  Samuel  Eowell,  1680  to  86  ;  Peter  Tilton, 
1680  to  86;  John  Richards,  1680  to  86  ;  John  Hall,  1680 
to  83  ;  Bartholomew  Gedney,  1680  to  83  ;  Thomas  Sav- 
age, 1680  to  81 ;  William  Browne,  16S0  to  83;  Samuel 
Appleton,  16S1  to  86  ;  Robert  Pike,  1682  to  86 ;  Dan-  I 
iel  Fisher,  1684 ;  John  Woodbriclge,  1683,  84 ;  Elisha  ' 
Cooke,  16S4  to  86  ;  William  Johnson,  1684  to  86  ;  John 
Hawthorne,  1684  to  S6  ;  Elisha  Hutchinson,  1684  to  86; 
Samuel  Sewall,  1684  to  86  ;  IsaacAddington,  1686,  John 
Smith,  1686. 

Oliver  Purchase  chosen  in  1685  declined.  The  char- 
ter required  the  election  of  eighteen  Assistants  but  in 
violation  of  its  provisions  the  number  varied  from  seven 
to  twelve  until  in  consequence  of  a  letter  from  the  King 
of  July  24,  1678,  the  number  of  eighteen  was  thereafter 
chosen. 

The  composition  of  the  judicial  system  at  the  time 
of  the  incorporation  of  the  counties  in  1643  has  already 
been  stated,  but  previous  to  that  time  certain  laws  were 
passed  which  though  not  relating  to  the  system  were 
germane  to  it.  On  the  7th  of  October,  1640,  a  law  was 
passed  providing  as  follows  : 

"  For  avoiding  all  fraudulent  conveyances  and  that  every 
man  may  know  what  estate  or  interest  other  men  may  have 
in  any  houses,  lands  or  other  hereditaments  they  are  to  deal 
in  it  is  therefore  ordered  that  after  the  end  of  the  month  no 
mortgage,  bargain,  sale  or  grant  hereafter  to  be  made  of  any 
houses,  lands,  rents  or  other  hereditaments  shall  be  of  force 
against  any  other  person,  except  the  grantor  and  his  heirs, 
unless  the  same  be  recorded  as  hereafter  expressed ;  and 
that  no  such  bargain,  sale  or  grant  already  made  in  way  of 
mortgage  where  the  grantor  remains  in  possession  shall  be 


44 


JUDICIAL  HISTOEY 


of  force  against  any  other  but  the  grantor  and  his  heirs  ex- 
cept the  same  shall  be  entered  as  is  hereafter  expressed  within 
one  month  after  the  end  of  this  court  if  the  party  be  within 
this  jurisdiction,  or  else  within  three  months  after  he  shall 
return.  And  if  any  such  grantor,  etc.,  be  required  by  the 
grantee,  etc.,  to  make  an  acknowledgment  of  any  grant,  etc., 
by  him  made  shall  refuse  so  to  do  it  shall  be  in  the  power  of 
any  magistrate  to  send  for  the  party  so  refusing  and  com- 
mit him  to  prison  without  bail  or  magistrate  until  he  shall 
acknowledge  the  same." 

The  famous  Domesday  book  which  contains  the  sur- 
veys of  lands  in  England,  made  about  the  year  1080, 
had  something  like  its  counterpart  in  the  record  which 
the  County  Court  kept  of  the  "  surveying  of  houses, 
backsides,  cornfields,  mowing  ground  and  other  lands," 
made  in  compliance  with  a  law  passed  in  April,  1634. 
This  record  contained  the  bounds  and  quantities  of 
land  of  each  person,  and  was  a  "  sufficient  assurance  to 
him,  his  heirs  and  assigns  of  such  estate  of  inheritance 
or  right,  as  he  shall  have  in  any  such  houses,  lands  or 
frank  tenements." 

The  recorder  above  mentioned  was  the  Clerk  of  the 
County  Court,  and  in  1641  it  was  ordered  that  in  every 
town  a  "  Clerk  of  the  writs  "  should  be  appointed  who 
should  record  all  births  and  deaths  and  annually  deliver 
to  the  recorder  or  Clerk  of  the  Court  a  transcript  thereof. 
It  was  also  ordered  that  every  married  man  shall  bring 
a  certificate  under  hand  of  the  Magistrate  who  married 
him,  to  the  Clerk,  of  the  wrrits,  to  be  recorded  by  him 
and  returned  to  the  court. 

In  1647  and  1649  an  act  was  passed  defining  and  en- 
larging the  jurisdiction  of  the  Magistrates  Court  and 
providing  that  "  any  magistrate  in  the  town  where  he 
dwells  may  hear  and  determine  by  his  discretion  (not 
by  jury)  according  to  the  laws  here  established  all  cases 


OF  MASSACHUSETTS. 


45 


arising  in  that  county  wherein  the  debt,  trespass  or  dam- 
age doth  not  exceed  forty  shillings,  who  may  send  for 
parties  and  witnesses  by  summons  or  attachment  di- 
rected to  the  marshal  or  constable  who  shall  faithfully 
execute  the  same.  And  it  is  further  ordered  that  in 
such  towns  where  no  magistrate  dwells,  the  Court  of 
Assistants  or  County  Courts  may  from  time  to  time  upon 
request  of  the  said  towns  signified  under  the  hand  of 
the  constable,  appoint  three  of  the  freemen  as  commis- 
sioners in  such  casps,  any  two  whereof  shall  have  like 
power  to  hear  and  determine  all  such  causes  wherein 
either  party  is  an  inhabitant  of  that  town,  who  have 
hereby  power  to  send  for  parties  and  witnesses,  by  sum- 
mons or  attachment  directed  to  the  constable,  as  also 
to  administer  oaths  to  witnesses  and  to  give  time  to  the 
defendant  to  answer  if  they  see  cause ;  and  if  the  party 
summoned  refuse  to  give  in.  his  bond  or  appearance,  or, 
sentenced,  refuse  to  give  satisfaction  where  no  goods 
appear  in  the  same  town  where  the  party  dwells,  they 
may  charge  the  constable  with  the  party  to  carry  him 
before  a  magistrate  or  Shire  Court  (if  then  sitting)  to 
be  further  proceeded  with  according  to  law,  but  the 
said  commissioners  may  not  commit  to  prison  in  any 
case.  And  when  the  parties  live  in  several  towns  the 
defendant  shall  be  liable  to  be  sued  in  either  town  at 
the  liberty  of  the  plaintiff.1'  It  was  also  ordered  "  that 
in  all  small  causes  as  aforesaid  when  only  one  magis- 
trate dwells  in  the  town  and  the  cause  concerns  himself, 
as  also  in  such  towns  where  no  magistrate  is  and  the 
cause  concerns  any  of  the  three  commissioners,  that  in 
such  cases  the  selectmen  of  the  town  shall  have  power 
to  hear  and  determine  the  same,  and  also  to  grant  exe- 
cution for  the  levying  and  gathering  up  such  damages 
for  the  use  of  the  person  damnified  as  one  magistrate 
or  three  commissioners  may  do.    And  no  debt  or  action 


46 


JUDICIAL  HISTORY 


proper  to  the  cognizance  of  one  magistrate  or  the  three 
commissioners  as  aforesaid  shall  be  received  into  any 
County  Court  but  by  appeal  from  such  magistrate  or 
commissioners  except  in  case  of  defamation  or  battery." 

Selectmen  were  also  authorized  to  try  offences  against 
the  by-laws  of  their  towns,  where  the  penalty  did  not 
exceed  twenty  shillings,  but  not  criminal  offences. 

In  1651,  a  law  was  passed  applicable  to  Boston  alone 
which  provided  "  that  there  be  seven  freemen,  resident 
in  Boston,  annually  chosen  by  the  freemen  of  the  said 
town  and  presented  to  the  Court  of  Assistants,  who 
hereby  have  powers  to  authorize  the  seven  freemen  to 
be  commissioners  of  the  said  town  to  act  in  things  com- 
mitted to  their  trust  as  is  hereafter  expressed,  who  shall 
from  time  to  time  be  sworn  before  the  said  court,  or 
the  Governor,  Deputy  Governor  or  any  two  magis- 
trates. And  this  court  doth  hereby  give  and  grant 
commission  and  authority  unto  the  said  seven  men,  or 
any  five  of  them  or  any  three  of  them  with  one  magis- 
trate, to  hear  and  determine  all  civil  actions  which  shall 
be  brought  before  them  not  exceeding  the  sum  of  ten 
pounds,  arising  within  the  neck  of  land  on  which  the 
town  is  situate,  as  also  on  Noddle's  Island,  or  betwixt 
any  persons  where  both  parties  shall  be  inhabitants  or 
residents  within  the  said  Neck  or  Noddle's  Island  afore- 
said or  where  either  party  shall  be  an  inhabitant  or 
resident  aforesaid ;  provided  they  keep  a  book  of  records 
for  the  entry  of  all  causes,  evidences,  testimonies,  sen- 
tences and  judgments  as  the  law  provides  in  like  cases ; 
which  said  commissioners  are  authorized  annually  to 
appoint  a  Clerk  of  their  Court  and  to  demand  and  re- 
ceive of  every  plaintiff  in  all  cases  or  actions  not  exceed- 
ing forty  shillings  the  sum  of  three  shillings,  and  for 
all  others  the  accustomed  fees,  and  the  said  commis- 
sioners shall  from  time  to  time  publish  their  court  days 


OF  MASSACHUSETTS. 


47 


as  the  three  commissioners  in  towns  are  bound  to  do." 
It  was  further  provided  that  none  should  be  appointed 
Commissioners  "  but  such  whose  conversation  is  inoffen- 
sive and  whose  fidelity  to  the  country  is  sufficiently 
known  and  approved  of  by  the  County  Court."  This 
law  however  continued  in  force  only  one  year. 

In  May  1685,  a  Court  of  Chancery  was  established, 
The  law  under  which  it  was  organized  provided  as  fol- 
lows : 

"Whereas,  it  is  found  by  experience  that  in  many  cases 
and  controversies  betwixt  parties,  wherein  there  is  matter  of 
apparent  equity,  there  hath  been  no  way  provided  for  relief 
against(the  rigor  of  the  common  lawTJbut  by  application 
to  the  G  eneral  Court,  where,  by  reason  of  the  weighty  affairs 
of  the  country  of  more  public  concernment,  particular  per- 
sons have  been  delayed  to  their  no  small  trouble  and  charge, 
and  also  great  expense  occasioned  to  the  public  by  the  long 
attendance  of  so  many  persons  as  that  Court  consists  of,  to 
hear  and  determine  personal  causes  brought  before  them ; 
for  ease  and  redress  whereof  it  is  ordered  and  enacted  by 
this  Court  that  the  magistrates  of  -each  County  Court  within 
this  jurisdiction,  being  annually  chosen  by  the  freemen,  be 
and  hereby  are  authorized  and  empowered  as  a  Court  of 
Chancery,  upon  bill  of  complaint  or  information  exhibited  to 
them,  containing  matter  of  apparent  equity,  to  grant  sum- 
mons or  process,  as  in  other  cases  is  usual,  briefly  specifying 
the  matter  of  complaint,  to  require  the  defendant's  appear- 
ance at  a  day  and  place  assigned  by  the  Court  to  make 
answer  thereunto,  and  also  to  grant  summons  for  witnesses 
in  behalf  of  either  party,  to  examine  parties  and  witnesses 
by  interrogations  upon  oath,  proper  to  the  case,  if  the  judges 
see  cause  to  require  it ;  and  if  any  party  being  legally  sum- 
moned shall  refuse  or  neglect  to  make  his  appearance  and 
answer,  the  case  shall  proceed  to  hearing  and  issue  as  is  pro- 
vided in  cases  at  common  law ;  and  upon  a  full  hearing  and 
consideration  of  what  shall  be  pleaded  and  presented  as  evi- 


48 


JUDICIAL  HISTORY 


deuce  in  any  such  case,  the  Court  to  make  their  decree  and 
determination  according  to  the  rule  of  equity,  secundum 
equum  et  bonum ,  and  to  grant  execution  thereon ;  provided 
always  that  either  party,  plaintiff  or  defendant,  who  shall 
find  himself  aggrieved  at  the  determination  of  the  said 
County  Court  shall  have  liberty  to  make  his  appeal  to  the 
magistrates  of  the  next  Court  of  Assistants,  giving  in  secur- 
ity for  prosecution  and  the  reason  of  his  appeal  to  the  officers 
of  the  said  County  Court  as  the  law  provides  in  other  cases, 
where  the  judges  of  the  former  Court  may  have  liberty  to 
allege  and  show  the  grounds  and  reasons  of  their  determina- 
tion, but  shall  not  vote  nor  judge  in  the  said  Court  of  As- 
sistants; and  the  judgment  or  decree  of  the  said  Court  of 
Assistants  shall  be  a  full  and  final  issue  and  determination 
of  all  such  cases  without  any  after  review  or  appeal,  unless 
upon  application  made  by  either  party  to  the  General  Court, 
the  said  Court  shall  see  meet  to  order  a  second  hearing  of 
the  case  at  the  County  Court  with  liberty  of  appeal  as  afore- 
said, or  in  any  arduous  and  difficult  cases  to  admit  a  hearing 
and  determination  by  the  General  Court;  and  that  a  suitable 
oath  be  drawn  up  and  agreed  upon  to  be  administered  to 
those  who  shall  be  judges ;  and  in  all  cases  of  this  nature 
brought  to  the  County  Court,  the  party  complaining  before 
his  bill  be  filed  and  process  granted,  shall  give  sufficient 
security  to  the  Clerk  of  the  Court  to  defray  the  necessary 
charge  and  attendance  of  Court." 

Before  dismissing  the  subject  of  the  colonial  judicial 
system  this  narrative  should  include  the  attempt  of  the- 
home  government  to  establish  another  tribunal.  In 
1664  Commissioners  of  Oyer  and  Terminer  were  ap- 
pointed to  visit  the  colonies  and  hear  and  determine  all 
matters  of  complaint  and  to  settle  the  peace  of  the 
country.  The  members  of  the  commission  were  Col. 
Kichard  Nichols,  Sir  Robert  Carr,  George  Cartwright 
and  Samuel  Maverick,  any  two  of  whom  might  form  a 
quorum  for  the  transaction  of  business.    Richard  Nich- 


OF  MASSACHUSETTS. 


49 


ols  was  the  first  English  Governor  of  New  York  after 
its  conquest  by  the  English  Colonies  in  1664  and  re- 
turned to  England,  whence  he  came,  in  1667.  Sir 
Robert  Carr  also  came  from  England  and  returned  to 
England,  where  he  died  in  1667.  George  Cartwright 
came  from  England  and  on  his  return  in  1665  was  cap- 
tured by  the  Dutch.  Samuel  Maverick  was  the  son  of 
Rev.  John  Maverick  of  Dorchester.  He  was  born  in 
England  about  1602,  and  going  from  Massachusetts  to 
New  York  in  1665  there  died.  The  attempt  of  the 
Commissioners  to  assume  authority  in  July,  1664,  was 
strongly  resisted,  and  after  a  somewhat  protracted  con- 
troversy the  attempt  to  establish  the  jurisdiction  of  the 
Court  in  Massachusetts  was  defeated. 

Up  to  1686  the  judicial  system  as  described  remained"" 
practically  unchanged,  but  it  will  be  proper  to  mention 
some  incidental  matters  relating  to  its  conduct  and  prac- 
tice which  have  not  yet  been  alluded  to.  The  executive 
officer  of  the  court  was  at  first  called  Beadle  and  after- 
wards Marshal.  James  Penn  was  appointed  to  the  of- 
fice September  25,  1634  and  was  succeeded  by  Ed- 
ward Michelson  who  served  many  years.  John  Greene 
was  appointed  May  27, 16S1  and  Samuel  Gookin  in  1691. 

The  law  concerning  witnesses  passed  in  May,  1667,  - 
provided  "  that  no  man  shall  be  put  to  death  without 
the  testimony  of  two  or  three  witnesses  or  that  which 
is  equivalent  thereto,"  and  "  that  any  one  magistrate  or 
commissioner  authorized  thereunto  by  the  General  Court 
may  take  the  testimony  of  any  person  of  fourteen  years 
of  age  or  above  of  sound  understanding  and  reputation 
in  any  case  civil  or  criminal  and  shall  keep  the  same  in 
his  own  hands  till  the  Court  or  deliver  it  to  the  recorder 
[clerk],  public  notary  or  clerk  of  the  writs  to  be  recorded 
that  so  nothing  may  be  altered  in  it.  Provided  that 
when  such  witness  shall  have  his  abode  within  ten  miles 
4 


50 


JUDICIAL  HISTORY 


of  the  Court  and  there  living  and  not  disenabled  by  sick- 
ness or  other  infirmity,  the  said  testimony  so  taken  out 
of  Court  shall  not  be  received  or  made  use  of  in  the  Court 
except  the  witnesses  be  also  present  to  be  further  ex- 
amined upon  it,  and  provided  also  that  in  all  capital 
cases  all  witnesses  shall  be  present  wheresoever  they 
dwell."  And  it  was  ordered  "that  two  shillings  a  day 
shall  be  accounted  due  satisfaction  to  any  witness  for 
travel  and  expenses ;  and  that  when  the  witness  dwelleth 
within  three  miles  and  is  not  at  charge  to  pass  over  any 
other  ferry  than  betwixt  Boston  and  Charlestown,  then 
one  shilling  and  six  pence  per  diem  shall  be  accounted 
sufficient." 

Verdicts  were  sometimes  rendered  that  there  were 
strong  grounds  of  suspicion  but  not  evidence  sufficient 
to  convict,  and  upon  such  verdicts  the  court  gave  sen- 
j  fence  for  what  appeared  to  them  on  the  trial  the  defend- 
ant had  been  guilty  of,  although  neither  charged  in  the 
1  indictment  nor  found  by  the  jury.  Occasions  arose 
when  the  Magistrates  presiding  in  court  refused  to  ac- 
cept the  verdict  of  the  jury.  In  1656  Anne  Hibbins 
was  tried  for  witchcraft  and  found  guilty,  but  the  Mag- 
istrates refused  to  acknowledge  the  decision  of  the  jury. 
The  case  was  carried  to  the  General  Court  and  she  was 
convicted  and  executed.  A  law  was  passed  in  1672 
which  put  an  end  to  all  differences  between  Judge  and 
jury,  providing  that  after  the  court  had  explained  the 
law  to  the  jury  and  "compared  the  matters  of  fact 
proved  therewith,,-  the  verdict  should  be  accepted  and 
judgment  rendered  thereon." 

On  the  18th  of  June,  1684,  the  colony  charter  was 
vacated  and  Charles  the  Second  died  in  February,  1 684-5. 

On  the  15th  of  May,  1686,  Joseph  Dudley  received  a 
commission  from  James  the  Second  appointing  him  Presi- 
dent of  Massachusetts  Bay,  New  Hampshire,  Maine  and 


OF  MASSACHUSETTS. 


51 


the  Narragansett  Country  or  the  King's  Province.  The 
Plymouth  Colony  had  no  charter  to  be  vacated,  and  for 
some  unexplained  reason  it  was  not  included  in  the  ju- 
risdiction of  Dudley.  That  colony  had  always  lived 
under  the  protection  of  the  patent  from  the  Council  for 
New  England  and  it  so  continued  until  after  the  short 
administration  of  Dudley  Sir  Edmund  Andros  was 
commissioned  Governor  of  New  England.  Dudley, 
whose  sketch  has  been  given  in  the  first  chapter,  was  a 
member  of  the  colony  and  an  Assistant  at  the  time  of  his 
appointment.  William  Stoughton,  also  an  Assistant, 
was  commissioned  Deputy  President,  and  a  board  of  fif- 
teen councillors,  consisting  of  Robert  Mason,  Fitz  John 
Winthrop,  John  Pinchon,  Peter  Bulkley,  Edward  Ran- 
dolph, Waitstill  Winthrop,  Richard  Wharton,  John 
Usher,  Bartholomew  Gedney,  Jonathan  Tyng,  John 
Hinckes,  Edward  Tyng,  Nathaniel  Saltonstall,  Simon 
Bradstreet,  Dudley  Bradstreet  and  Francis  Champenon. 
Of  these  Saltonstall  and  Simon  and  Dudley  Bradstreet 
declined. 

William  Stoughton  the  Deputy  President  was  born  in 
Dorchester  in  1631  or  1632  and  graduated  at  Harvard 
in  1650.  He  was  first  a  clergyman,  afterwards  an  Assist- 
ant from  1671  to  1676,  an  agent  of  the  Massachusetts 
Colony  in  England  in  1677,  Chief  Justice  of  the  Supe- 
rior Court  from  1692  to  1701,  member  of  the  Council 
from  1693  to  1701,  Lieutenant  Governor  from  1692  to 
1701,  and  at  various  times  a  Selectman  in  Dorchester. 
He  died  July  7,  1701. 

Of  the  councillors  Robert  Mason  was  afterwards  a 
Judge  under  Andros  and  lived  in  Portsmouth  where  he 
died  in  1686.  John  Pynchon  was  born  in  England  in 
1625,  and  came  to  Massachusetts  in  1648  and  settled  in 
Springfield.  He  was  son  of  William  Pynchon  and  was 
a  deputy  in  1659-62,  63,  and  Assistant  from  1665  to 


52 


JUDICIAL  HISTORY 


1686.  He  was  one  of  the  founders  of  Northampton  and 
died  January  17,  1703.  Peter  Bulkley  was  son  of  Kev. 
Peter  Bulkley  and  was  born  in  Concord,  Mass.,  Au- 
gust 12,  1643.  He  graduated  at  Harvard  in  1660  and 
was  Speaker  of  the  House  from  May  19, 1669  to  May  31, 
1671,  and  again  from  May  17, 1672  to  May  7, 1673.  He 
was  also  an  Assistant  from  1667  to  1684  and  died  at  Con- 
cord in  May,  1688.  Edward  Randolph  was  appointed 
Colonial  Secretary  in  September,  1685,  and  Judge  of  the 
Pleas  and  Sessions  by  President  Dudley  July  27,  1686. 
Waitstill  Winthrop,  son  of  John  Winthrop  the  Govern- 
or of  Connecticut,  and  grandson  of  Governor  John 
"Winthrop  of  the  Massachusetts  Colony,  was  born  in 
Boston,  February  27,  1642,  and  was  appointed  Judge  of 
^the  Superior  Court  of  Judicature,  December  23,  1692, 
and  Chief  Justice  in  1701,  resigning  the  same  year.  He 
was  again  appointed  Chief  Justice  in  1708  and  died  in 
Boston,  November  7,  1717.  Richard  Wharton  was  ap- 
pointed Judge  of  the  Pleas  and  Sessions  by  President 
Dudley,  July  27, 1686.  John  Usher,  son  of  Hezekiah,  was 
born  in  Boston  in  April,  1648  and  appointed  Judge  of 
the  Pleas  and  Sessions  by  Dudley,  July  27,  1686.  Bar- 
tholomew Gedney  was  a  physician  of  Salem,  and  born 
in  1640.  He  was  an  Assistant  from  1680  to  16S3,  and 
was  appointed  in  1692  one  of  the  Judges  to  try  witch- 
craft cases.  In  the  same  year  he  was  appointed  Judge 
of  Probate  for  Essex  County  and  Judge  of  the  Inferior 
Court.  He  died  February  28,  1698-9.  Jonathan  Tyng 
was  son  of  Edmund  Tyng  and  born  in  Boston  in  1642. 
John  Hinks  was  of  Portsmouth  and  came  from  England 
about  1670.  He  was  living  at  Newcastle,  K  H.,  in  1722 
and  died  before  April,  1734.  Though  the  appointment 
of  Dudley  was  a  disturbing  event  in  the  colony,  it  was 
on  the  whole  a  relief,  as  it  had  been  determined  by  King 
Charles  before  his  death  to  appoint  Col.  Percy  Kirk,  an 


OF  MASSACHUSETTS. 


53 


exceedingly  objectionable  man,  as  Governor  of  the  Prov- 
ince with  the  title  of  "  His  Majesty's  Lieutenant  and 
Governor  General." 

The  career  of  Dudley  was  short,  expiring  with  the 
arrival  of  Sir  Edmund  Andros,  December  19, 1686,  with 
a  commission  as  Governor  of  New  England.  But  it 
was  sufficiently  long  to  enable  him  to  change  the  judi- 
cial affairs  of  the  colony.  The  Governor  and  Council 
were  made  a  Court  of  Record  for  the  trial  of  civil  and 
criminal  causes  and  were  invested  with  authority  to 
establish  courts  and  appoint  judges.  A  Superior  Court 
composed  of  a  majority  of  the  Councillors  was  ordered 
with  three  sessions  a  year  at  Boston,  and  Courts  of^- 
Pleas  and  Sessions  of  the  Peace,  were  organized  in  the 
several  counties.  At  that  time  Hampshire^  had  been 
added  to  the  list  of  counties,  having  been  incorporated 
May  7,  1662,  and  the  old  county  of  Norfolk  had  been 
extinguished  when  New  Hampshire  was  made  a  Ro\Tal 
Province  in  1679.  William  Stoughton  was  appointed 
to  preside  in  the  County  Courts  of  Suffolk,  Middlesex 
and  Essex  with  John  Richards  and  Simon  Lynde  as 
Assistants.  The  President  assumed  probate  jurisdic- 
tion as  Supreme  Ordinary  with  power  to  appoint  Judges 
of  Probate  and  Clerks  in  the  counties  as  he  saw  fit. 
Benjamin  Bullivant  was  appointed  Attorney  General, — a 
physician  and  apothecary  who  knew  apparently  nothing 
of  courts  and  rules  of  practice.  The  executive  officer 
of  the  court  was  called  Provost  Marshal,  a  title  after- 
wards under  Andros  changed,  to  Sheriff.  Benjamin 
Bullivant,  Giles  Masters,  Anthony  Checkley,  John 
Watson,  Nathaniel  Thomas  and  Christopher  Webb  were 
admitted  and  sworn  as  Attorneys.  Bullivant  was  also 
appointed  November  2,  1686,  Clerk  of  the  Superior 
Court,  Daniel  Allen  and  Thomas  Dudley  were  made 


54 


JUDICIAL  HISTORY 


Clerks  of  Suffolk,  and  John  Winchcomb  and  Nathaniel 
Page,  Marshals. 

Aside  from  the  statutes  enacted  by  the  General  Court 
.the  common  law  of  England  was  all  through  the  life  of 
the  colony  the  guide  in  judicial  proceedings.  Famil- 
iarity with  that  law  was  necessarily  limited.  Few  of 
the  Judges  or  Attorneys  were  educated  in  the  law. 
Among  the  practitioners  in  addition  to  those  already 
mentioned  were  John  Coggan,  a  merchant  and  Amos 
Richardson  a  tailor.  The  Superior  Court  was  to  hold 
special  terms  of  Oyer  and  Terminer,  composed  of  the 
President,  Deputy  President  and  members  of  the 
Council. 

Sir  Edmund  Andros  holding  a  commission  from  James 
the  Second  as  Governor  of  New  England  arrived  in 
Boston,  December  19,  1686.  He  was  born  in  London, 
December  6, 1637,  and  in  1671  was  appointed  Governor 
of  the  Province  of  New  York  by  the  Duke  of  York  and 
continued  in  that  office  until  1681.  After  his  deposi- 
tion from  the  governorship  of  New  England  on  the 
accession  of  William  and  Mary  he  was  appointed,  in 
1692,  Governor  of  Virginia  and  remained  until  1698. 
From  1701  to  1706  he  was  Governor  of  the  Island 
of  Jersey  and  died  in  London,  February  24, 1714. 

The  jurisdiction  of  Andros  included  the  Plymouth 
Colony  as  well  as  the  other  colonies  which  were  in- 
cluded in  that  of  Dudley.  He  appointed  thirty-nine 
councillors,  and  delegated  the  power  of  making  and 
executing  the  laws  to  the  Governor  and  Council  subject 
to  the  approval  of  the  crown.  The  councillors  in 
addition  to  those  already  mentioned  as  the  incumbents 
under  Dudley  were  Thomas  Hinckley,  Barnabas  Lo- 
throp,  William  Bradford,  Daniel  Smith,  James  Walley, 
Nathanel  Clark,  John  Coggshall,  Walter  Clark,  Wal- 
ter Newberry,  John  Sanford,  John  Greene,  Richard 


OF  MASSACHUSETTS. 


55 


Arnold,  John  Albro,  Francis  Nicholson,  Robert  Treat, 
John  Allyn,  Samuel  Shrimpton,  William  Browne,  Rich- 
ard Smith,  Simon  Lynde,  Anthony  Brockholst,  Frederick 
Phillips,  Jarvis  Baxter,  Stephen  Yan  Courtlandt,  John 
Young,  Nicholas  Bayard,  John  Palmer  and  John 
Sprague. 

He  established  the  Quarterly  Sessions  Court  held( 
by  the  several  justices  in  their  respective  counties,  and  | 
an  Inferior  Court  of_  Common^PLeas  to  be  held  in 
each  county  by  a  Judge  assisted  by  two  or  more  Justices 
of  the  county,  with  a  limitation  of  jurisdiction  in  Boston 
to  twenty  pounds  where  the  court  was  to  sit  once  in 
two  months,  and  in  other  counties  to  ten  pounds  where 
it  was  to  sit  annually.  He  also  established  a  Superior  ^ 
Court  of  Judicature  in  which  no  action  could  be  begun 
involving  less  than  ten  pounds,  unless  it  related  to  a 
question  of  freehold,  which  court  was  to  be  held  in  Bos- 
ton, Cambridge,  Charlestown,  Plymouth,  Bristol,  New- 
port, Salem,  Ipswich,  Portsmouth,  Falmouth  (Portland),^ 
Northampton  and  Springfield.  Joseph  Dudley  was  ap- 
pointed Chief  Justice  and  at  various  times  the  Associate 
Judges  were  William  Stoughton,  Peter  Bulkley,  Samuel 
Shrimpton,  Simon  Lynde,  Charles  Lidget,  John  West 
and  John  Usher.  George  Far  well  was  made  Attorney 
General  and  clerk  of  the  Superior  Court,  and  James 
Sherlock  was  made  Sheriff.  A  Court  of  Chancery  and 
special  courts  of  Oyer  and  Terminer  were  provided  for,  < 
and  jurisdiction  was  given  to  Justices  of  the  Peace  in 
civil  causes  not  affecting  land  nor  involving  a  sum  ex- 
ceeding forty  shillings. 

From  the  Governor  and  Council  and  from  the  Chan-^ 
eery  Court  appeals  could  be  had  to  the  crown  in  causes 
involving  more  than  three  hundred  pounds  sterling. 
Under  the  administration  of  Andros  writs  were  directed 
to  Sheriffs,  but  an  ineffectual  attempt  to  change  the  di- 


56 


JUDICIAL  HISTORY 


rection  of  the  writs  was  successfully  resisted.  In  June, 
1688,  Sir  William  Phipps  was  commissioned  Provost 
General  of  New  England  and  called  on  Andros  to  dis- 
charge the  Sheriffs  and  have  the  writs  directed  to  the 
Provost  Marshal  or  his  Deputy,  which  Andros  refused 
to  do.  It  has  been  said  that  an  attempt  was  made  to 
assassinate  Phipps  and  that  on  this  account  he  returned 
to  England  leaving  Andros  in  supreme  and  undisturbed 
control. 

Andros  succeeded  in  making  himself  thoroughly  un- 
popular b}'  his  despotic  methods  of  administering  the 
affairs  of  his  jurisdiction.  He  declared  all  public  lands 
^  vested  in  the  crown,  and  thus  for  a  time  towns  incum- 
bered themselves  with  a  heavy  burden  of  expense  in 
defending  their  possessions,  and  those  acting  in  their  de- 
fence were  arrested  and  imprisoned.  He  claimed  the 
right  to  assess  taxes  on  the  several  towns  and  those  who 
advised  resistance  to  the  claim  were  arrested  and  im- 
prisoned in  the  jail  in  Boston. 

During  the  career  of  Andros  the  number  of  attorneys 
increased,  but  they  belonged  to  the  same  class  as  those 
already  mentioned.  Thomas  Newton,  King  Hayman 
and  others  equally  ignorant  of  the  law  were  admitted 
to  practice.  Edward  Randolph  wrote  to  Mr.  John 
Povey  in  1687-8  :  "  I  have  wrote  you  of  the  want  we 
have  of  two  or  three  honest  attorneys  (if  any  such  thing 
in  nature)  we  have  but  two,  one  is  West's  creature, 
come  with  him  from  New  York  and  drives  all  before 
him." 

But  fortunately  for  New  England  the  administration 
of  Andros  was  destined  to  a  speedy  termination.  When 
the  news  of  the  English  revolution  and  of  the  accession 
of  William  and  Mary  reached  Boston,  Andros  was  ar- 
rested and  sent  to  England  with  some  of  his  more  active 
and  subservient  councillors.    Among  these  was  Nathan- 


OF  MASSACHUSETTS. 


57 


iel  Clark  of  Plymouth,  who  had  made  himself  especially 
obnoxious  to  the  people  of  that  town  on  account  of  his 
successful  application  to  Andros  for  a  grant  of  Clark's 
Island  which  had  always  been  a  possession  of  the  town. 
Clark  was  son  of  Thomas  Clark,  who  came  in  the  Ann 
in  1623,  and  whose  gravestone  is  now  standing  on 
Burial  Hill  in  Plymouth.  He  succeeded  Nathaniel 
Morton  as  Secretary  of  Plymouth  Colony  in  1685,  and 
died  in  Plymouth  in  1717. 

After  the  departure  of  Andros,  Simon  Bradstreet, 
the  colonial  Governor  in  office  before  Dudley  became 
President,  resumed  his  office  April  IS,  16S9,  a  new 
House  of  Deputies  was  chosen,  and  the  administration 
of  affairs  was  again  conducted  as  before  the  revocation 
of  the  charter.  The  court  of  Assistants,  which  had  held  ^ 
its  last  session  April  15,  16S6,  resumed  its  sessions  in  ' 
December,  1689,  and  Anthony  Checkly  was  chosen 
Attorney  General  and  John  Greene,  Marshal  General 
of  the  colon}7.  The  County  Courts  also  resumed  their 
sessions,  and  no  further  changes  in  the  judicial  system 
occurred  during  the  colonial  period.  A  new  charter 
embracing  the  Plymouth  Colony,  the  Massachusetts  Col- 
ony, Maine,  Nova  Scotia  and  the  intervening  territory 
in  a  government  by  the  name  of  the  "  Province  of  the 
Massachusetts  Bay  in  New  England  "  passed  the  seals 
on  the  7th  of  March,  1691,  and  reaching  Boston  May  14, 
1692,  at  that  date  terminated  the  life  of  the  Massachu--^ 
setts  Colony. 


CHAPTER  III. 


PROVINCE  OF  THE  MASSACHUSETTS  BAY. 

Before  entering  on  the  judicial  career  of  the  province 
it  will  be  proper  to  make  the  explanatory  statement 
that  the  provincial  charter  included  the  islands  of 
Nantucket  and  Martha's  Vineyard,  which  had  been  pre- 
viously wTithin  the  jurisdiction  of  New  York.  The  for- 
mer became  a  county  under  the  name  of  "Nantucket 
County"  June  22,1695,  and  the  latter  at  the  same  date 
as  the  "  County  of  Dukes  County."  Sir  William  Phipps, 
the  governor  appointed  by  the  Crown,  arrived  with  the 
charter  in  Boston  May  14,  1692,  and  after  the  oath  of 
office  had  been  administered  the  General  Court  ap- 
pointed "  a  day  of  solemn  thanksgiving  to  Almighty 
God  for  granting  a  safe  arrival  of  His  Excellency,  our 
Governor,  and  the  Rev.  Increase  Mather,  who  have  in- 
dustriously endeavored  the  service  of  the  people  and 
have  brought  over  with  them  a  settlement  of  Govern- 
ment in  which  their  majesties  have  graciously  given  us 
distinguishing  marks  of  their  royal  favor  and  goodness." 

The  full  text  of  the  charter  will  be  found  in  the  ap- 
pendix marked  "  E." 

The  issue  of  the  charter  marked  the  termination  of  a 
struggle,  which  was  far  from  satisfactory  to  either  of 
the  parties  concerned  in  it.  The  Massachusetts  Colony 
through  its  agents,  Increase  Mather  and  others,  sought 
a  charter  perpetuating  its  ancient  liberties  enjoyed  un- 
der the  charter  vacated  in  1684.  The  Plymouth  Col- 
ony sought  a  charter  for  itself  alone ;  and  the  Governor 
(58) 


OF  MASSACHUSETTS. 


59 


of  New  York,  within  whose  jurisdiction  Nantucket  and 
Martha's  Vineyard  had  up  to  that  time  been  included, 
sought  not  only  to  retain  those  islands  but  to  have  also 
the  Plymouth  Colouy  added  to  his  jurisdiction.  New 
York  and  the  Plymouth  Colony  were  disappointed  in 
the  division  of  territory  and  both  the  Plymouth  and 
Massachusetts  Colonies  vere  grievously  disappointed 
in  the  nature  of  the  franchise  which  the  charter  granted. 
Both  colonies  had  been  practically  enjoying  the  bless- 
ings of  free  and  independent  commonwealths,  choosing 
their  own  officers  and  making  their  own  laws,  and  now 
they  were  to  be  subjected  like  a  conquered  people  to 
the  authority  of  the  crown.  There  were,  however,  a 
few  features  in  the  new  charter  more  satisfactory  than 
some  in  the  old.  The  religious  element  was  eliminated 
in  the  election  of  freemen  and  the  power  to  raise  money 
and  levy  taxes  given  to  the  General  Court  seemed  to 
be  a  partial  bulwark  against  royal  usurpations.  Had 
the  constituent  elements  of  the  province  been  the  same 
as  those  of  the  colony,  the  provisions  of  the  charter 
would  have  seemed  intolerable,  but  owing  to  large  immi- 
gration from  England  there  was  an  extensive  feeling  of 
loyalty  to  monarchial  institutions  which  felt  no  shock 
at  the  innovation  contemplated  by  that  instrument. 

There  was  one  provision  in  the  charter  which  gave 
unalloyed  satisfaction,  that  relating  to  the  titles  of  pub- 
lic lands.  Andros  had  declared  all  such  titles  vested  in 
the  crown  and  that  holders  of  estates  must  present 
themselves  and  prove  their  titles.  The  charter  provided 
"  that  all  such  lands,  tenements  and  hereditaments,  and 
all  other  estates  which  any  person  or  persons,  politic  or 
corporate,  towns,  villages,  colleges  or  schools  do  hold 
and  enjoy,  or  ought  to  hold  or  enjoy,  by  or  under  any 
grant  or  estate  duly  made,  or  granted  by  any  General 
Court,  or  by  any  other  lawful  right  or  title  whatsoever, 


60 


JUDICIAL  HISTORY 


shall  be  by  them,  their  heirs  and  assigns  peacefully  held 
according  to  the  tenure  of  their  grants." 

Besides  the  Governor,  Lieutenant  Governor  and  Sec- 
retary a  provisional  board  of  Councillors  was  appointed, 
consisting  of  Simon  Bradstreet,  John  Richards,  Na- 
thaniel Saltonstall,  Wait  Winthrop,  John  Phillips, 
James  Burrell,  Samuel  Sewall,  Samuel  Appleton,  Bar- 
tholomew Gedney,  John  Hathorne,  Elisha  Hutchinson, 
Robert  Pike,  Jonathan  Corwin,  John  Joliffe,  Adam 
Winthrop,  Richard  Middlecot,  John  Foster,  Peter  Ser- 
geant, John  Lynde,  Samuel  Heyman,  Stephen  Mason, 
Thomas  Hinckley,  William  Bradford  2d,  John  Walley, 
Barnabas  Lothrop,  Job  AlcotT^aniueT Daniel  and  Syl- 
vanus  Davis. 

The  first  General  Court  under  the  charter  met  on  the 
8th  of  June,  1692,  but  previous  to  that  time  Governor 
Phipps,  Avithout  any  authority  conferred  by  the  charter, 
issued  commissions  on  the  2d  of  June  for  a  special  court 
of  Oyer  and  Terminer  to  try  those  persons  who  had 
been  charged  with  witchcraft.  The  members  of  the 
court  were  William  Stoughton,  Chief  Justice,  and  Na- 
thaniel Saltonstall,  John  Richards,  Bartholomew  Ged- 
ney, Wait  Winthrop,  Samuel  Sewall  and  Peter  Sergeant, 
Associate  Justices.  Mr.  Saltonstall  declined  and  Jona- 
than Corwin  was  appointed  in  his  place.  Stephen 
Sewall  was  appointed  clerk,  Thomas  Newton,  their  ma- 
jesties' attorney,  Anthony  Checkley,  Attorney  General, 
and  George  Corwin,  Sheriff.  The  instructions  of'  the 
Attorney  General  were  "  to  inquire  of,  hear  and  deter- 
mine for  this  time,  all  and  all  manner  of  felonies,  witch- 
craft, crimes  and  offences  ;  how,  or  by  whomsoever  done, 
committed  or  perpetrated,  within  the  several  counties 
of  Suffolk,  Essex  and  Middlesex.1' 

Of  these  judges  a  sketch  of  Stoughton  has  been  already 
given.    John  Richards,  son  of  Thomas,  was  born  in 


OF  MASSACHUSETTS. 


61 


England  and  came  to  Massachusetts  with  his  father  in 
1630.  He  was  a  merchant,  and  Treasurer  of  Harvard 
College  from  1669  to  16S2  and  from  16S6  to  1698.  He 
was  a" Deputy  from  Newbury  from  1671  to  1673  and 
from  Had  ley  in  1675  and  from  Boston  in  1679-80,  and 
Speaker  of  the  House  in  the  last  two  years.  He  was  an 
Assistant  from  1680  to  1686  and  Judge  of  the  Superior 
Court  of  Judicature  from  1692  to  1694  in  which  last 
year  he  died  on  the  2d  of  April.  Bartholomew  Gedney 
was  a  physician  in  Salem  and  was  born  in  1640.  He 
was  an  Assistant  from  1680  to  1683  and  a  member  of 
the  Councils  of  Dudley  and  Andros.  In  1692  he  was 
appointed  Judge  of  Probate  for  Essex  County  and 
Judge  of  the  Inferior  Court  of  that  county.  He  died 
February  28, 1698-9.  Wait  Winthrop  has  alread}^  been 
noticed.  Samuel  Sewall,  son  of  Henry  came  from  Eng- 
land in  1661  at  nine  years  of  age  and  graduated  at  Har- 
vard in  1671.  He  studied  divinity  but  had  no  settle- 
ment. He  was  an  Assistant  from  1684  to  16S6  and 
again  in  1692.  Under  the  provincial  government  he 
was  a  member  of  the  Council  many  years,  and  on  the 
organization  of  the  Superior  Court  of  Judicature  he 
was  made  one  of  the  Judges  and  in  171S  Chief  Justice, 
serving  until  1728,  when  he  resigned  both  that  position 
and  that  of  Judge  of  Probate  for  Suffolk  Count}7,  which 
he  had  held  since  1715.  He  died  in  January,  1730. 
Sewall,  in  the  opinion  of  Washburn,  was  among  the  most 
learned,  pious  and  honest  men  in  the  province,  possess- 
ing purity  of  heart  and  magnanimity  of  spirit.  With 
this  characterization  the  writer  cannot  agree,  impressed 
as  he  is  with  the  conviction  that  he,  Sewall,  was  a  nar- 
row, bitter  and  unrelenting  theologian  to  whom  can  be 
accorded  only  the  justification  and  defence  which  the  in- 
quisition of  Spain  might  have  claimed.  Peter  Sergeant 
was  probably  a  Boston  merchant.    He  was  one  of  the 


62 


JUDICIAL  HISTORY 


Council  of  the  province  until  1703  when  his  election 
was  negatived  by  Governor  Dudley.  He  was  appointed 
Judge  of  the  Suffolk  Inferior  Court  March  3,  1693,  from 
which  position  he  was  removed  by  Dudley  in  1702. 
Jonathan  Corwin  was  born  in  Salem  in  1610  and  in  1692 
was  appointed  Judge  of  the  Essex  Inferior  Court  and 
continued  on  that  bench  until  he  was  appointed  Judge 
of  the  Superior  Court  of  Judicature  in  1708.  In  1715 
he  resigned,  and  died  in  June,  1718. 

The  court  sat  at  various  times  between  the  2d  of  June 
and  the  17th  of  September  and  condemned  nineteen 
persons  to  be  hung  and  one  to  be  pressed  to  death.  Not 
a  single  lawyer  was  connected  with  the  court.  Two  of 
the  Judges  were  clergymen,  two  physicians,  two  mer- 
chants, as  was  also  the  Attorney  General. 

It  may  not  be  Out  of  place  to  interpose  some  defence 
of  a  court  upon  which  so  much  obloquy  has  been  cast, 
as  if  it  was  specially  infected  with  a  delusion  which 
seems  to  us  so  abhorrent.  The  fact  is  that  a  belief  in 
witchcraft  was  universal,  founded  as  it  was  on  the  con- 
viction that  the  Bible  was  the  inspired  word  of  God. 
Theologians  especially  were  convinced  of  its  existence, 
and  it  is  probable  that  to  Stoughton  and  Sewall,  the 
clergymen  on  the  bench,  the  convictions  and  punish- 
ments were  due.  In  the  18th  verse  of  the  22d  chapter 
of  Exodus  we  find  the  command:  "Thou  shalt  not 
suffer  a  witch  to  live."  In  the  27th  verse  of  the  20th 
chapter  of  Leviticus  are  these  words :  "  A  man  also,  or 
a  woman,  that  hath  a  familiar  spirit,  or  that  is  a  wizard, 
shall  surely  be  put  to  death ;  they  shall  stone  him  with 
stones ;  their  blood  shall  be  upon  them,"  and  in  the 
18th  chapter  of  Deuteronomy,  the  10th,  11th  and  12th 
verses,  it  is  written :  "  There  shall  not  be  found  among 
you  any  one  that  maketh  his  son  or  his  daughter  to 
pass  through  the  fire,  or  that  useth  divination,  or  an 


OF  MASSACHUSETTS. 


63 


observer  of  times,  or  an  enchanter,  or  a  witch,  or  a 
charmer,  or  a  cotisulter  with  familiar  spirits,  or  a  wiz- 
ard, or  a  necromancer,  for  all  that  do  these  things  are 
an  abomination  unto  the  Lord,  and  because  of  these 
abominations  the  Lord  thy  God  doth  drive  them  out 
from  before  thee."  It  is  probable  that  the  victims  of 
the  delusion  were  as  firm  in  their  belief  as  any  and 
would  acknowledge,  while  denying  their  own  guilt, 
that  those  who  were  guilty  should  die.  We  cannot 
deny  that  in  our  own  time  delusions  as  great,  though 
not  as  cruel  in  their  results,  are  abroad  without  even 
the  Scriptures  to  justify  them. 

There  were  two  omissions  or  rather  two  points  not 
made  sufficiently  clear  in  the  charter  which  seemed  to 
render  an  explanatory  charter  necessary.  Such  a  char- 
ter was  issued  by  George  the  First,  dated  August  26, 
1725.  That  charter  provided  that  the  House  of  Depu- 
ties, or  Representatives,  might  choose  a  speaker  who 
should  be  approved  by  the  Governor  or  Lieutenant 
Governor  or  Commander  in  Chief,  and  that  the  General 
Court  might  adjourn  from  day  to  day  for  the  space  of 
two  days  and  not  longer  without  the  consent  of  either 
of  those  officials.  The  text  of  this  charter  will  be  found 
in  the  appendix  marked  F. 

The  first  act  passed  by  the  Provincial  General  Court 
relating  to  the  courts  was  enacted  June  28,  1692,  and 
published  on  the  second  of  July,  as  follows  : 

"  An  Act  for  the  holding  of  Courts  of  Justice. 

"  Forasmuch  as  the  orderly  regulation  and  well  establish- 
ment of  Courts  of  Justice  is  of  great  concernment,  and  the 
public  occasions  with  reference  to  the  war,  and  otherwise 
being  so  pressing  at  this  season  that  the  Court  cannot  now 
conveniently  set  longer  to  advise  upon  and  fully  settle  the 
same,  but  to  the  intent  that  justice  be  not  obstructed  or  de- 
layed. 


64 


JUDICIAL  HISTORY 


"Be  it  ordained  and  enacted  by  the  Governor,  Council 
and  Representatives,  convened  in  general  assembly,  and  it  is 
ordained  by  authority  of  the  same. 

"Sec.  1.  That  on  or  before  the  last  Tuesday,  in  July 
next  there  be  a  general  sessions  of  the  peace  held  and  kept 
in  each  respective  county  within  the  province,  by  the  Jus- 
tices of  the  same  county,  or  three  of  them  at  least  (the  first 
Justice  of  the  quorum  then  present  to  preside)  who  are  em- 
powered to  hear  and  determine  all  matters  relating  to  the 
conservation  of  the  peace,  and  whatsoever  is  by  them  cog- 
nizable according  to  law,  and  to  grant  licenses  to  such  per- 
sons within  the  same  county,  being  first  approved  of  by  the 
Selectmen  of  each  town  where  such  persons  dwell,  whom 
they  shall  think  fit  to  be  employed  as  innholders  or  retailers 
of  wines  or  strong  liquors,  and  that  sessions  of  the  peace  be 
successively  held  and  kept  as  aforesaid  within  the  several 
counties  at  the  same  times  and  places  as  the  County  Courts 
or  Inferior  Courts  of  Common  Pleas  are  hereafter  appointed 
to  be  kept. 

"  And  it  is  further  enacted  by  the  authority  aforesaid  : 
"  Sec.  2.  That  the  County  Courts  or  Superior  Courts  of 
Common  Pleas  and  kept  in  each  respective  county  by  the 
Justices  of  the  same  county  or  three  of  them  at  least  (the 
first  Justice  of  the  quorum  then  present  to  preside)  at  the 
same  times  and  places  they  have  been  formerly  kept  accord- 
ing to  law,  for  the  hearing  and  determining  of  all  civil  ac- 
tions arising  or  happening  within  the  same,  triable  at  the 
common  law  according  to  former  usage :  the  Justices  for 
holding  and  keeping  of  the  said  court  within  the  county  of 
Suffolk  to  be  particularly  appointed  and  commissioned  by 
the  Governor  with  the  advice  and  consent  of  the  Council, 
and  that  all  writs  or  attachments  shall  issue  out  of  the  clerk's 
office  of  the  said  several  courts,  signed  by  the  clerk  of  such 
court,  directed  unto  the  Sheriff  of  the  county,  his  under 
Sheriff  or  Deputy.  The  jurors  to  serve  at  said  courts  to  be 
chosen  according  to  former  custom,  by  and  of  the  freehold- 
ers and  other  inhabitants  qualified  as  is  directed  in  their 


OF  MASSACHUSETTS. 


65 


Majesty's  royal  charter.  This  act  to  continue  until  other 
provision  be  made  by  the  General  Court  or  Assembly." 

This  act  was  disallowed  by  the  Privy  Council  on  the 
22d  of  August,  1695,  because  a  distinction  was  made  in 
the  manner  of  appointing  Justices  between  the  county 
of  Suffolk  and  other  counties. 

Before  the  passage  of  the  above  act,  June,  1692,  it 
was  ordered  that  all  local  laws  made  by  the  Governor 
and  Company  of  Massachusetts  Bay  (Massachusetts  Col- 
ony) and  the  government  of  New  Plymouth  not  repug- 
nant to  the  laws  of  England  "  nor  inconsistent  with  the 
present  constitution  and  settlement  by  their  Majesty's 
charter  to  remain  and  continue  in  full  force  in  the  re- 
spective places  for  which  they  were  made  and  used, 
until  the  10th  day  of  November  next,  except  in  cases 
where  other  provision  is  or  shall  be  made  by  this  court 
or  assembly ;  and  all  persons  are  required  to  conform 
themselves  accordingly ;  and  the  several  Justices  are 
hereby  empowered  to  the  execution  of  said  laws  as  the 
magistrates  formerly  were." 

On  the  25th  of  November,  1692,  at  the  second  session 
of  the  General  Court  an  act  was  passed  providing, 

"Sec.  1.  That  all  manner  of  debts,  trespass  and  other 
matters  not  exceeding  the  value  of  forty  shillings  (wherein 
the  title  of  land  is  not  concerned)  shall  and  may  be  heard, 
tried,  adjudged  and  determined  by  any  of  their  Majesty's 
Justices  of  the  peace  of  this  province,  within  the  respective 
counties  where  he  resides,  who  is  hereby  empowered  upon 
complaint  made,  to  grant  a  warrant  or  summons  against  the 
party  complained  of  seven  days  before  the  day  of  trial  or 
hearing,  thereby  requhing  him  or  them  to  appear  and  an- 
swer the  said  complaint,  and  in  case  of  nonappearance  to 
issue  out  a  warrant  of  contempt  directed  to  the  Constable  or 
other  officers  to  bring  the  contemner  before  him,  as  well  to 
5 


66 


JUDICIAL  HISTORY 


answer  the  said  contempt,  as  the  plaintiffs'  action,  and  if  he 
sees  cause  to  fine  the  said  contemner. 

"Be  it  further  enacted  and  ordained  by  the  authority 
aforesaid : 

"  Sec.  2.  That  there  shall  be  held  and  kept  in  each  re- 
spective county,  within  the  province,  yearly  at  the  times  and 
places  hereafter  named  and  expressed,  four  Courts  or  Quar- 
ter Sessions  of  the  peace  by  Justices  of  the  peace  of  the 
same  county  who  are  hereby  empowered  to  hear  and  deter- 
mine all  matters  relating  to  the  conservation  of  the  peace  and 
punishment  of  offenders,  and  whatsoever  is  by  them  cogniza- 
ble according  to  law,  that  is  to  say,  for  the  county  of  Suffolk 
at  Boston  on  the  first  Tuesdays  in  March,  June,  September 
and  December ;  for  the  county  of  Plymouth  at  Plymouth  on 
the  third  Tuesdays  in  March,  June,  September  and  Decem- 
ber ;  for  the  county  of  Essex  at  Salem  on  the  last  Tuesdays 
in  June  and  December ;  at  Ipswich  on  the  last  Tuesday  in 
March,  and  at  Newbury  on  the  last  Tuesday  in  September; 
for  the  county  of  Middlesex  at  Charlestown  on  the  second 
Tuesdays  in  March  and  December;  at  Cambridge  on  the  sec- 
ond Tuesday  in  September  and  at  Concord  on  the  second 
Tuesday  in  June ;  for  the  county  of  Barnstable  at  Barns- 
table on  the  first  Tuesdays  in  April,  July,  October  and  Jan- 
uary; for  the  county  of  Bristol  at  Bristol  on  the  second 
Tuesdays  in  April,  July,  October  and  January;  for  the 
county  of  York  at  York  on  the  first  Tuesdays  in  April  and 
July,  and  at  Wells  on  the  first  Tuesdays  in  October  and  Jan- 
uary ;  for  the  county  of  Hampshire  at  Northampton  on  the 
first  Tuesdays  in  March  and  June ;  at  Springfield  on  the  last 
Tuesdays  in  September  and  December;  and  that  there  be  a 
general  sessions  of  the  peace  held  and  kept  at  Edgartown 
upon  the  island  of  Capawack  alias  Martha's  Vineyard  and 
on  the  Island  of  Nantucket  respectively  on  the  last  Tuesday 
in  March  and  on  the  first  Tuesday  in  October. 

"  And  it  is  further  enacted  by  the  authority  aforesaid  : 
"  Sec.  3.  That  at  the  times  and  places  before  mentioned 
there  shall  be  held  and  kept  in  each  respective  county  and 


OF  MASSACHUSETTS. 


(37 


islands  before  named  within  the  province,  an  Inferior  Court 
of  Common  Pleas  by  four  of  the  Justices  of  and  residing 
within  the  same  county  and  islands  respectively  to  be  ap- 
pointed and  commissionated  thereto,  any  three  of  whom  to 
be  a  quorum,  for  the  hearing  and  determining  of  all  civil 
actions  arising  or  happening  within  the  same,  triable  at  the 
common  law  of  what  nature,  kind  or  quality  soever. 
"  And  it  is  further  enacted  by  the  authority  aforesaid : 
"  Sec.  4.  That  there  shall  be  a  Superior  Court  of  Judi- 
cature over  the  whole  province,  to  be  held  and  kept  annually 
at  the  respective  times  and  places  hereafter  mentioned,  by 
one  Chief  Justice  and  four  other  Justices  to  be  appointed 
and  commissionated  for  the  same,  three  of  whom  to  be  a 
quorum,  who  shall  have  cognizance  of  all  pleas,  real,  per- 
sonal and  mixed,  as  well  in  all  pleas  of  the  crown  and  in  all 
matters  relating  to  the  conservation  of  the  peace,  and  pun- 
ishment of  offenders,  as  in  civil  causes  of  actions  between 
party  and  party  and  between  their  majesties  and  any  of  their 
subjects,  whether  the  same  do  concern  the  realty  and  relate 
to  any  right  of  freehold  and  inheritance,  or  whether  the  same 
do  concern  the  personalty,  and  relate  to  matter  of  debt,  con- 
tract, damage,  or  personal  injury,  and  also  in  all  mixed 
actions  which  may  concern  both  realty  and  personalty,  and 
after  deliberate  hearing  to  give  judgment  and  award  execu- 
tion thereon.  The  said  Superior  Court  to  be  held  and  kept 
at  the  times  and  places  within  the  respective  counties  follow- 
ing :  that  is  to  say,  within  the  county  of  Suffolk  at  Boston 
on  the  last  Tuesdays  of  April  and  October ;  within  the  county 
of  Middlesex  at  Charlestown  on  the  last  Tuesdays  of  July  and 
January ;  within  the  county  of  Essex  at  Salem  on  the  second 
Tuesday  of  November  and  at  Ipswich  on  the  second  Tues- 
day of  May;  within  the  counties  of  Plymouth,  Barnstable 
and  Bristol  at  Plymouth  on  the  last  Tuesday  of  February, 
and  at  Bristol  on  the  last  Tuesday  of  August. 

"Sec.  5.  That  the  trial  of  all  civil  causes  by  appeal  or 
writ  of  error  from  any  of  the  Inferior  Courts  within  the 
respective  counties  of  York  or  Hampshire,  the  Islands  of 


68 


JUDICIAL  HISTORY 


Capawack,  alias  Martha's  Vineyard  and  Nantucket,  shall  be 
in  the  Superior  Court  to  be  held  in  Boston  or  Charlestown. 

"  And  it  is  hereby  further  enacted  by  the  authority  afore- 
said : 

"  Sec.  12.  That  there  be  a  high  Court  of  Chancery  within 
the  province  who  shall  have  power  and  authority  to  hear  and 
determine  all  matters  of  equity,  of  what  nature,  kind  or 
quality  soever,  and  all  controversies  disputes  and  differences 
arising  betwixt  coexecutors,  and  other  matters  proper  and 
cognizable  to  said  court,  not  reviewable  at  common  law ;  the 
said  court  to  be  holden  and  kept  by  the  Governor  or  such 
other  as  he  shall  appoint  to  be  chancellor  assisted  with  eight 
or  more  of  the  Council,  who  may  appoint  all  necessary  offi- 
cers to  the  said  court ;  which  said  court  shall  sit  and  be  held 
at  such  times  and  places  as  the  Governor  or  chancellor  for 
the  time  being  shall  from  time  to  time  appoint ;  provided, 
nevertheless,  that  the  Justices  in  any  of  the  courts  aforesaid 
when  the  forfeiture  of  any  penal  bond  is  found,  shall  be  and 
are  hereby  empowered  to  chancer  the  same  unto  the  just  debt 
and  damages." 

This  act  also  was  disallowed  by  the  Privy  Council 
on  the  22d  of  August,  1695,  because  the  provision  of 
the  act  that  either  party  not  being  satisfied  with  the 
judgment  of  any  of  the  courts  in  personal  actions  and 
exceeding  £300,  may  appeal  to  His  Majesty  in  Council, 
seemed  to  exclude  the  right  of  appeal  in  real  actions. 

On  the  9th  of  November,  1692,  an  act  was  passed, 
providing  "  Whereas  at  the  session  of  the  court  in 
June  last,  an  act  was  passed,  entitled  '  an  act  for  con- 
tinuing the  local  laws  to  stand  in  force  till  November 
the  10th,  1692,'  it  is  ordained  and  enacted  that  the  said 
act  and  every  part  of  it  be  and  hereby  is  revived  and 
continued  in  full  force  to  all  intents  and  purposes,  from 
and  after  the  said  tenth  day  of  November,  and  shall  so 
continue  until  the  General  Assembly  shall  take  further 
order." 


OF  MASSACHUSETTS. 


69 


On  the  11th  of  December,  1693,  an  act  was  passed  in 
addition  to  the  "act  for  establishing  of  Judicatures 
and  Courts  of  Justice  within  the  province,"  which, 
among  other  things  pertaining  to  forms  and  rules  of 
courts,  changed  the  time  for  holding  the  Court  of 
Quarter  Sessions,  and  the  Inferior  Court  of  Common 
Pleas  in  Boston  to  the  first  Tuesdays  in  July,  October, 
January  and  April,  and  provided  that  there  be  a  Court 
of  Judicature,  Court  of  Assize  and  General  Gaol  Deliv- 
ery held  at  Kittery,  in  the  county  of  York,  on  Wed- 
nesday before  the  second  Tuesday  in  May,  and  at 
Springfield  on  the  last  Tuesday  in  June.  This  act  was 
also  disallowed  by  the  Privy  Council  on  the  10th  of 
December,  1696,  because  the  act  to  which  it  was  in  ad- 
dition had  been  disallowed. 

An  act  was  also  passed  December  5,  1693,  providing 
for  a  new  establishment  and  regulation  of  the  Chan- 
cery Court,  but  as  this  act  was  chiefly  amendatory  of 
the  act  establishing  Judicatures,  passed  November  25, 
1692,  it  was  disallowed  because  that  act  had  been. 

Acts  were  passed  February  15,  1693-4,  and  March  2, 
1693-1,  changing  the  times  for  holding  the  Superior 
Court,  but  they  are  of  no  importance  in  this  narrative. 

The  first  Judges  of  the  Superior  Court  of  Judicature 
were  appointed  in  1692,  and  were  William  Stoughton, 
Chief  Justice,  and  Thomas  Danforth,  Wait  Winthrop, 
John  Richards,  and  Samuel  Sewall.  All  of  these,  ex- 
cept Thomas  Danforth,  have  been  already  noticed. 

Judge  Danforth,  son  of  Nicholas,  was  born  in  Eng- 
land in  1622.  He  was  an  Assistant  from  1659  to  1678, 
Deputy  Governor  from  1679  to  1686,  and  continued  on 
the  bench  of  the  Superior  Court  until  his  death,  Novem- 
ber 5,  1699.  In  1695  all  the  old  judges,  except  Richards, 
who  had  died  April  2,  1694,  were  reappointed,  and 
Elisha  Cooke  was  appointed  in  the  place  of  Richards. 


70 


JUDICIAL  HISTORY 


Judge  Cooke  was  a  physician,  and  was  born  in  Boston, 
September  16,  1637.  He  graduated  at  Harvard  in 
1657,  and  died  May  31,  1715. 

The  reappointment  of  the  judges  in  1695,  was  ren- 
dered necessary  by  the  disallowance  of  the  law  estab- 
lishing courts  under  which  they  were  appointed  in 
1692,  and  not  on  account  of  the  death  of  Governor 
Phipps,  as  supposed  by  Judge  Washburn  in  his  Judicial 
History,  which  had  occurred  on  the  18th  of  the  pre- 
vious February. 

On  account  of  the  disallowance  of  the  court  law  of 
1692,  an  act  was  passed  intended  to  meet  the  objections 
raised  by  the  Privy  Council,  of  which  the  following  are 
the  preamble  and  first  section  : 

"  Whereas  his  Majesties'  pleasure  hath  been  signified  for 
the  repealing  and  making  void  an  act  made  and  passed  by 
the  Great  and  General  Court  or  Assembly  anno  one  thou- 
sand six  hundred  ninety-two,  in  the  fourth  year  of  the  reign 
of  his  present  magesty  and  the  late  Queen  Mary,  his  royal 
consort  of  blessed  memory,  entitled  "An  act  for  the  estab- 
lishing of  Judicatures  and  Courts  of  Justice  within  this  prov- 
ince," also  for  the  repealing  and  making  void  another  act 
entitled  "An  act  for  the  establishing  of  precedents  and 
forms  of  writs  and  processes  with  the  particular  reasons  of 
his  Majesties'  disallowance  of  said  acts  for  the  information 
and  direction  of  the  General  Assembly,  and  the  amendments 
and  considerations,  necessary  for  the  supply  thereof ;  and 
whereas  it  is  absolutely  necessary  that  speedy  provision  be 
made,  that  his  Majesties'  subjects  may  not  suffer  for  the 
want  of  due  course  of  justice. 

"  Be  it  enacted,  etc.  : 

"  Sec.  1.  That  the  before  mentioned  act  entitled  '  an  act 
for  the  establishing  of  Judicatures  and  Courts  of  Justice 
within  this  province,'  and  all  and  singular  the  paragraphs, 
articles,  clauses  and  sentences  thereof  (except  the  paragraph 


OF  MASSACHUSETTS. 


71 


for  constituting  a  Court  of  Chancery  and  such  other  articles, 
clauses  and  sentences  in  said  act  as  have  been  heretofore 
repealed,  altered  or  otherwise  provided  for,  in  and  by  any 
other  act  or  acts  of  the  General  Assembly  of  this  province, 
or  which  in  and  by  the  present  act  shall  be  altered,  other- 
wise provided  for  or  declared  to  be  null  and  void)  be  and 
he-eby  are  revived  and  continued  to  abide  and  remain  in 
full  force  and  virtue  until  the  end  of  the  first  session  of  the 
General  Assembly  to  be  begun  and  held  upon  the  last  Wed- 
nesday of  the  month  of  May  next,  in  the  year  of  our  Lord 
one  thousand  six  hundred  ninety-seven,  and  no  longer; 
provided,  nevertheless,  that  the  words  (and  no  other)  in  the 
section  or  paragraph  of  the  said  act,  providing  for  liberty 
of  appeal  unto  his  Majesty  or  Council  be  and  hereby  are  de- 
clared void  and  of  no  effect." 

This  act  also  was  disallowed  by  the  Privy  Council 
on  the  21th  of  November,  1698,  notwithstanding  the 
objectionable  part  of  the  act  which  had  been  disallowed 
was  removed,  for  the  reason  that  the  act  which  it  re- 
vived had  been  disallowed.  Before  the  disallowance 
of  this  revival  act  another  act  was  passed  on  the  19  th 
of  June,  for  the  establishment  of  courts  very  similar  to 
the  act  of  1692,  with  the  name  of  the  Quarter  Sessions 
of  the  Peace  changed  to  a  court  of  General  Sessions  of 
the  Peace  and  the  omission  of  the  provision  for  the  Chan- 
cery Court. 

This  act  also  was  disallowed  November  24,  1698,  be- 
cause the  provision  "  among  other  things  that  all  mat- 
ters and  issues  in  fact  shall  be  tried  by  a  jury  of  twelve 
men  was  contrary  to  the  intention  of  an  act  of  parlia- 
ment entitled  an  act  to  prevent  frauds  and  regulating 
abuses  in  the  plantation  trade,  by  which  it  was  provided 
that  all  causes  relating  to  the  breach  of  the  acts  of  trade 
may,  at  the  pleasure  of  the  officer  or  informer,  be  tried 
in  the  Court  of  Admiralty,  to  be  held  in  any  of  his  Ma- 


72 


JUDICIAL  HISTORY 


jesty's  Plantations,  respectively  where  such  offence  shall 
be  committed  ;  because  the  method  of  trial  in  such  Courts 
of  Admiralty  is  not  by  juries  of  twelve  men,  as  by  the 
forementioned  act  for  establishing  of  courts  is  directed." 

An  order  was  received  on  the  26th  of  April,  1699, 
disallowing  the  Court  Act  of  1696,  while  the  court  was 
in  session.  On  the  27th  the  Judges  went  into  court 
and  after  announcing  the  disallowance,  dissolved  the 
court.  On  the  26th  of  May,  Governor  Bellomont  ar- 
rived in  Boston  as  the  successor  of  Governor  Phipps, 
and  on  the  2d  of  June  announced  to  the  General  Court 
the  disallowance  and  recommended  the  revival  of  the 
courts  by  such  an  act  as  the  Privy  Council  would  ap- 
prove. 

Eichard  Coote,  Earl  of  Bellomont,  succeeded  Lieu- 
tenant Governor  Stoughton,  who  had  been  acting  Gov- 
ernor since  the  death  of  Governor  Phipps,  reaching 
New  York  in  the  summer  of  1698,  bearing  a  commis- 
sion which  constituted  him  Governor  of  the  Province 
of  New  York,  and  of  New  Jersey  and  New  Hampshire 
as  well  as  of  Massachusetts.  He  came  to  Boston  shortly 
after  his  arrival,  remaining  about  a  year,  during  which 
he  sought  to  reconcile  the  differences  between  the 
province  and  the  Privy  Council. 

Finally  at  the  session  of  the  General  Court  which  be- 
gan on  the  31st  of  May,  1699,  three  acts  were  passed 
establishing  courts  which  were  approved  by  the  King 
in  Council  and  were  published  on  the  27th  of  June. 
On  the  25th  of  July  the  former  Judges  composing  the 
Superior  Court  were  reappointed  and  commissioned. 

The  first  of  the  three  acts  established  a  Court  of  Gen- 
eral Sessions  of  the  Peace,  to  be  held  by  the  Justices  of 
the  Peace  in  each  county  with  a  jurisdiction  over  mat- 
ters relating  to  the  conservation  of  the  peace  and  the 
punishment  of  offenders,  from  which  an  appeal  might 


OF  MASSACHUSETTS. 


73 


be  taken  to  the  Superior  Court  of  Judicature.  The  sec- 
ond established  an  Inferior  Court  of  Common  Pleas  to 
be  held  in  each  county  by  four  persons  tojbe  appointed 
as  Justices  and  to  take  cognizance  of  all  civil  actions 
within  the  county  triable  at  common  law.  The  third 
established  a  Superior  Court  of  Judicature  for  the  prov- 
ince, to  be  held  by  one  Chief  Justice  and  four  Asso- 
ciate Justices  and  have  cognizance  of  all  pleas,  real,  per- 
sonal or  mixed,  as  well  as  all  pleas  of  the  crown  and  all 
matters  relating  to  the  conservation  of  the  peace  and 
punishment  of  offenders,  as  civil  causes  or  actions,  and 
also  all  mixed  actions  which  concern  both  realty  and 
personalty  brought  before  them  by  appeal,  service,  writ 
of  error  or  otherwise,  and  generally  of  all  other  matters 
as  fully  as  the  Court  of  King's  Bench,  Common  Pleas 
and  Exchequer  ought  to  have.  Times  and  places  for 
holding  this  court  were  specified  for  all  the  counties 
except  Barnstable,  Nantucket  and  Dukes  County.  For 
Barnstable  and  Dukes  sessions  were  to  be  held  at  Ply- 
mouth. For  Nantucket  trials  for  capital  offences  were 
to  be  held  on  the  island,  but  appeals  or  writs  of  error 
from  the  Court  of  General  Sessions  of  the  Peace  and 
Inferior  Court  of  Common  Pleas  were  to  be  heard  in 
Suffolk  or  Middlesex. 

Among  the  acts  which  were  soon  after  passed  was 
an  extraordinary  one  which  plainly  manifested  a  lenient 
spirit  towards  debtors.  It  provided  "  that  it  shall  be 
the  liberty  of  the  party  aggrieved,  at  any  judgment 
given  in  any  Inferior  Court  of  Common  Pleas  within 
this  province  to  appeal  therefrom  unto  the  next  Super- 
ior Court  of  Judicature,  Court  of  xissize  and  General 
Gaol  Delivery  to  be  held  within  or  for  the  same  county; 
and  upon  judgment  given  at  said  Superior  Court  of 
Judicature  upon  such  appeal,  it  shall  be  lawful  for 
either  party,  appellant  or  defendant  to  review  such 


74 


JUDICIAL  HISTORY 


action  by  process  out  of  the  said  Superior  Court  or 
otherwise,  the  party  aggrieved  at  any  judgment  given 
in  any  Inferior  Court  of  Common  Pleas  may  by  a  new 
process  review  said  case  in  the  same  court  where  it  was 
first  tried ;  and  after  judgment  given  upon  such  trial 
by  review,  the  party  aggrieved  at  the  same  judgment 
may  appeal  therefrom  unto  the  next  Superior  Court  of 
Judicature  to  be  holden  for  or  within  the  same  county, 
or  may  bring  his  writ  of  error  for  a  new  trial  of  the 
said  case  in  the  said  Superior  Court  of  Judicature ;  and 
in  all  cases  wherein  the  plaintiff  or  defendant  shall  have 
obtained  the  number  of  three  judgments  it  shall  be  a 
final  issue  and  determination  of  such  case ;  and  every 
action  of  review  shall  be  brought  within  the  space  of 
three  years ;  and  no  civil  action  shall  be  originally 
brought  into  the  Superior  Court  of  Judicature,  unless 
in  cases  where  the  King  is  concerned." 

The  act  was  disallowed  by  the  Privy  Council,  Octo- 
ber 22,  1700,  because  its  provision  "  giving  liberty  for 
three  trials  before  sentence  or  judgment  in  any  case  be 
final  or  conclusive  and  between  each  trial  allowing  a 
liberty  of  three  years  suspense  was  dilatory  and  vexa- 
tious." In  consequence  of  this  disallowance  another  act 
was  passed  in  1701  providing  for  one  appeal  from  the 
Inferior  Court  of  Common  Pleas  to  the  Superior  Court 
of  Judicature,  and  one  review  in  each  court,  and  per- 
mitting a  review  to  be  brought  at  any  time  within  three 
years  after  judgment. 

At  a  later  date  in  1754  an  act  was  passed  providing 
that  where  a  party  has  recovered  judgment  on  two  trials 
no  review  shall  be  allowed,  and  in  1757  the  right  of 
review  was  restricted  to  the  Superior  Court  of  Judicature. 

It  has  been  stated  in  the  second  chapter  that  under  the 
colonial  charter  matters  relating  to  the  probate  of  wills 
and  the  administration  of  estates  of  deceased  persons 


OF  MASSACHUSETTS. 


75 


were  within  the  jurisdiction  of  the  County  Court.  This 
jurisdiction  was  disturbed  during  the  administrations  of 
Dudley  and  Andros  but  after  the  overthrow  of  Andros 
the  old  method  was  resumed  and  continued  until  the 
province  charter  went  into  operation.  By  that  charter 
probate  affairs  were  placed  in  the  hands  of  the  Gov- 
ernor and  Council  who  claimed  and  exercised  the  right 
to  appoint  Judges  and  Registers  of  Probate  in  the 
various  counties.  These  county  probate  officers  with 
their  incumbents  and  the  laws  relating  to  them  will  be 
hereafter  considered. 

The  charter  provided,  it  will  be  remembered,  that 
the  exercise  of  admiralty  jurisdiction  was  reserved  to 
the  crown,  to  be  granted  by  virtue  of  commissions  issued 
under  the  great  seal  of  England  or  under  the  seal  of  the 
High  Admiral  or  the  commissioners  for  executing  the 
office  of  High  Admiral  of  England.  The  colonies  were 
divided  into  admiralty  districts  over  which  Judges  of 
Admiralty  were  appointed  with  power  to  appoint  Depu- 
ties. The  Northern  district  at  first  included  New  York, 
Massachusetts,  Connecticut,  Rhode  Island  and  New 
Hampshire  with  the  addition  afterwards  of  New  Jersey. 
New  York,  New  Jersey  and  Connecticut  were  after- 
wards withdrawn  and  from  1703  to  1767  the  district 
continued  unchanged,  being  made,  at  the  latter  date  to 
include  all  New  England.  Under  the  colonial  charter 
admiralty  jurisdiction  was  exercised  by  the  Court  of 
Assistants  who  were  authorized  under  a  law  passed  in 
1673  to  hear  and  try  causes  without  a  jury.  Under 
the  reservation  clause  of  the  province  charter  Governor 
Phipps  exercised  admiralty  jurisdiction  until  1694,  in 
which  year  upon  a  representation  and  complaint  in 
regard  to  the  manner  of  his  administering  his  admiralty 
functions  a  Court  of  Vice  Admiralty  was  created  con- 
sisting of  one  judge,  a  King's  Advocate,  a  Register  and 
a  Marshal. 


76 


JUDICIAL  HISTORY 


The  jurisdiction  of  the  court  extended  to  breaches  of 
the  acts  of  trade  and  trials  were  held  without  juries, 
appeals  being  allowed  to  the  Court  of  Delegates  in 
England.  Besides  the  Court  of  Vice  Admiralty,  a 
Judiciary  Court  of  Admiralty  was  established  for 
the  trial  of  piracies  and  other  offences  on  the  high  seas. 
This  court  generally  consisted  of  the  Governor,  the 
Council,  the  Judge  of  Vice  Admiralty,  the  Captain 
of  the  King's  ships  of  war  in  the  station,  the  Surveyor 
of  the  Customs  and  the  Collector  of  Boston.  Some- 
times special  courts  were  constituted  for  trials  variously 
composed. 

In  1764:  Dr.  William  Spry  was  appointed  Judge  of 
Admiralty  over  all  America,  and  after  reaching  Hali- 
fax issued  a  proclamation  naming  certain  days  for  hold- 
ing court  in  that  place.  In  1767  he  was  appointed 
Governor  of  Barbadoes,  where  he  died  in  1772. 

The  first  Judge  of  Admiralty  was  Wait  or  Waitstill 
Winthrop,  who  has  already  been  noticed.  He  was  ap- 
pointed in  1699,  and  his  jurisdiction  covered  New  York, 
Massachusetts,  Connecticut,  Rhode  Island  and  New 
Hampshire.  William  Atwood  succeeded  Judge  Win- 
throp, and  was  appointed  October  28,  1701.  His  dis- 
trict was  the  same  as  that  of  Winthrop,  with  New  Jer- 
sey added,  and  Thomas  Newton  was  his  Deputy.  In 
April,  1703,  Roger  Mompesson  was  appointed,  and  af- 
ter the  division  of  the  district  in  that  year,  Nathaniel 
Byfield,  who  had  been  Deputy  Judge,  was  appointed 
Judge  of  the  district  covering  Massachusetts,  New 
Hampshire  and  Rhode  Island.  John  Menzies,  a  native 
of  Scotland,  came  to  Boston  December  24-,  1715,  bear- 
ing his  commission  as  the  successor  of  B}rfield.  He 
was  a  member  of  the  General  Court  -in  1721,  and  died 
in  Boston,  September  20,  172S.  On  the  25th  of  No- 
vember, 1728,  Nathaniel  Byfield  was  again  appointed 


OF  MASSACHUSETTS. 


77 


Judge  with  a  jurisdiction  over  Kbode  Island,  Massa- 
chusetts and  New  Hampshire,  r.nd  appointed  Nathaniel 
Hubbard  his  Deputy  for  the  county  of  Bristol,  and  the 
province  of  Rhode  Island.  Judge  By  field  was  born  in 
England  in  1653,  and  was  the  son  of  Richard  Byfield, 
one  of  the  Westminster  Assembly.  He  came  to  Boston 
in  1674,  and  about  1680  settled  in  Bristol,  and  in  1685 
was  appointed  Chief  Justice  of  the  Court  of  Common 
Fleas  for  Bristol  County.  He  was  speaker  of  the 
House  of  Representatives  in  1693.  In  1702  he  was  ap- 
pointed Judge  of  Probate  for  Bristol  County,  and  con- 
tinued in  office  until  1710.  In  1731  he  removed  to 
Boston  and  was  appointed  by  Governor  Belcher,  Chief 
Justice  of  the  Court  of  Common  Pleas  for  Suffolk 
County.  He  died  in  1733.  Robert  Auchinuty  was 
appointed  to  succeed  Judge  B}r  field  in  1733,  and  held 
office  until  1747.  Judge  Auchinuty  was  an  eminent 
barrister,  and  from  time  to  time  had  filled  occasional 
vacancies  in  the  office  of  Attorney  General.  He  was- 
born  in  Scotland  and  educated  in  Dublin,  and  studied 
la  w  in  the  Temple.  He  was  admitted  to  practice  in 
Boston  in  1720.  In  1741  he  was  sent  to  England  to 
settle,  if  possible,  the  dispute  between  Rhode  Island 
and  Massachusetts,  concerning  the  boundary  line  be- 
tween Rhode  Island  and  the  territory  of  the  colony  of 
New  Plymouth.  He  died  in  April,  1750.  Chambers 
Russell  succeeded  Judge  Auchmuty  in  1747,  and  held 
office  until  1767.  Judge  Russell  was  the  son  of  Daniel 
Russell  and  was  born  in  Charlestown  in  1713.  He  grad- 
uated at  Harvard  in  1731,  and  from  1747  to  1752  was. 
Judge  of  the  Court  of  Common  Pleas  for  Middlesex 
County,  and  a  member  of  the  Council  in  1759  and  1760. 
He  settled  in  Concord  and  was  a  Representative  from 
that  town.  In  1752  he  was  appointed  Judge  of  the 
Superior  Court,  and  remained  on  the  bench  until  his 


78 


JUDICIAL  HISTORY 


death,  which  occurred,  in  Guilford,  England,  November 
21,  1766.  George  Cradock  was  Deputy  Judge  under 
Russell  until  1766,  when  he  was  succeeded  by  William 
Reed.  Judge  Russell  was  succeeded  by  Robert  Auch- 
muty,  Jr.,  and  in  the  year  of  his  appointment,  July  6, 
1767,  his  jurisdiction  was  made  to  cover  all  New  Eng- 
land. He  continued  in  office  until  the  Revolution. 
Judge  Auchmuty,  son  of  Robert  above  mentioned,  was 
born  in  Boston,  and  with  Adams  and  Quincy,  defended 
Captain  Preston  and  others  connected  with  the  so 
called  Boston  massacre.  Being  a  loyalist,  he  went  to 
England,  and  there  died  in  December,  1788. 

The  Advocates  General  of  the  Admiralty  Court  at 
various  times  were  as  follows :  Benjamin  Lynde  was 
appointed  in  1697.  He  was  born  in  Salem  September  22, 
1666,  and  graduated  at  Harvard  in  1686.  He  studied 
law  in  the  Middle  Temple,  London,  and  in  1697  re- 
turned to  Massachusetts  with  his  commission  as  Ad- 
vocate General.  He  was  Judge  of  the  Superior  Court 
from  1712  to  1729,  when  he  was  made  Chief  Justice. 
He  died  in  Salem,  January  28,  1719.  John  Valentine 
succeeded  Mr.  Lynde,  a  distinguished  lawyer,  who 
died  in  1724.  William  Shirley  appointed  in  1733, 
was  born  in  Preston,  England,  in  1693,  and  was  edu- 
cated in  the  law.  He  came  to  Boston  in  1721,  and 
practised  in  his  profession  until  1711,  when  he  was  ap- 
pointed Governor  of  the  province.  William  Bollan  suc- 
ceeded Mr.  Shirley  and  was  born  in  England.  He 
studied  law  with  Robert  Auchmuty,  and  died  in  Eng- 
land in  1776.  James  Otis,  Jr.,  followed,  who  resigned 
in  1761.  Mr.  Otis  was  son  of  Colonel  James  and  Mary 
Allyne  Otis,  and  was  born  in  Barnstable,  Mass,  Febru- 
ary 5,  1725.  He  graduated  at  Harvard  in  1713  and 
studied  law  in  Boston  with  Jeremiah  Gridley  and  fin- 
ished his  studies  iu  Plymouth,  where  he  was  admitted 


OF  MASSACHUSETTS. 


79 


to  the  bar  and  practiced  several  years.  The  house  in 
which  he  had  his  law  office  in  Plymouth  is  still  stand- 
ing. In  1750  he  removed  to  Boston,  and  made  his 
memorable  speech  against  writs  of  assistance  in  1761. 
In  1766  he  was  speaker  of  the  House  of  Representatives, 
and  in  1769  was  assaulted  by  John  Robinson,  one  of 
the  commissioners  of  customs  whom  he  had  denounced 
in  an  article  in  the  Gazette,  and  so  seriously  injured 
that  not  long  after  his  mind  became  deranged.  He  re- 
tired from  public  life  to  Andover,  where  he  was  killed 
by  lightning  May  29,  1783.  Robert  Auchmuty,  who 
has  already  been  noticed  succeeded  Mr.  Otis  followed 
by  Jonathan  Sewall.  Mr.  Sewall,  son  of  Jonathan,  was 
born  in  Boston,  August  24, 172S,  and  graduated  at  Har- 
vard in  1748.  He  was  appointed  Attorney  General  of 
Massachusetts  in  1767,  and  Solicitor  General  the  same 
year  he  was  made  Advocate  General,  and  in  176S  was 
made  Judge  of  the  Nova  Scotia  Admiralty  Court.  In 
1775  as  a  loyalist  he  went  to  England,  and  in  1788  set- 
tled in  St.  John,  jSTew  Brunswick,  where  he  held  the 
position  of  Admiralty  Judge  until  his  death  in  that  place 
September  26, 1796. "  Samuel  Fitch  followed  Mr.  Sewall 
in  1770,  and  continued  in  office  until  the  Revolution. 
Mr.  Fitch  graduated  at  Yale  in  1742,  was  a  barrister  in 
Boston  and  an  addresser  of  Hutchinson  in  1774.  He 
was  solicitor  of  the  Board  of  Customs  as  well  as  Advo- 
cate General,  and  in  1776  went  to  Halifax  on  the  evac- 
uation of  Boston,  and  in  1778  was  proscribed  and  ban- 
ished. He  afterwards  went  to  England  where  he  died 
in  1784. 

The  office  of  Attorney  General  was  established  by 
President  Dudley  in  1686,  who  appointed  Benjamin  Bul- 
livant  to  that  office  who  was  reappointed  by  Andros. 
George  Farwell  succeeded  Mr.  Bullivant  and  held  office 
until  June  20,  1688.    Mr.  Farwell  came  to  Massachu- 


80 


JUDICIAL  HISTORY 


setts  from  New  York  and  was  sent  to  England  with 
Andros  in  1689.  James  Graham  followed  and  held  of- 
fice until  news  of  the  accession  of  William  and  Mary- 
reached  Boston,  when  he  Avas  sent  to  England  with  An- 
dros and  Farwell.  Anthony  Checkley,  born  in  1636, 
was  a  merchant  who  had  served  as  an  Attorney  in  the 
Colonial  Courts  and  as  temporary  Attorney  General  of 
the  Court  of  Oyer  and  Terminer  for  the  witchcraft 
trials.  He  was  the  first  Attorney  General  under  the 
charter,  receiving  his  appointment  from  the  Governor 
and  Council,  October  28,  1692.  He  had  however  served 
in  the  same  office  after  the  deposition  of  Andros  under 
an  appointment  made  June  11,  1689.  In  July,  1686, 
while  still  pursuing  his  business  career  he  was  admitted 
to  practice  and  took  the  oath  as  Attorney.  Paul  Dud- 
le}'  was  appointed  Attorney  General  July  1,  1702.  The 
son  of  Joseph  Dudley  he  was  born  September  3, 1675,  and 
graduated  at  Harvard  in  1690.  He  studied  law  in  the 
Temple  in  London.  In  1718  he  was  appointed  an  As- 
sociate Justice  of  the  Superior  Court  of  Judicature,  and 
in  1745  Chief  Justice.  He  was  the  founder  of  the  Dud- 
leian  lectures  at  Harvard  for  which  he  made  a  bequest. 
During  the  incumbency  of  Dudley  a  dispute  arose  be- 
tween the  Governor  and  Council  and  the  House  of  Rep- 
resentatives as  to  which  body  should  choose  the  At- 
torney General,  which  was  finally  settled  in  1715  by  an 
agreement  that  he  should  be  chosen  by  the  concurrent 
vote  of  both  branphes  of  the  General  Court.  Mr.  Dud- 
ley died  January  25,  1752.  John  Valentine  already 
noticed  as  Advocate  General  was  Attorney  General  in 
1718  and  1719.  Thomas  Newton  succeeded  Valentine 
and  held  office  until  his  death  May  28, 1721.  Mr.  New- 
ton was  born  in  England  June  10,  1660,  and  coming  to 
Massachusetts  took  the  oath  as  Attorney  June  8,  1688. 
He  was  a  Deputy  Judge  of  the  Court  of  Admiralty  and 


OF  MASSACHUSETTS. 


81 


Comptroller  of  the  Customs  for  the  port  of  Boston  where 
he  died  May  28, 1721.  The  next  Attorney  General  was 
John  Overing,  chosen  by  the  House  of  Representa- 
tives  in  1722.  Mr.  Overing  was  a  successful  Boston 
Attorney.  He  was  again  chosen  in  1729  and  in  1739, 
40,  11, 13  and  annually  afterwards  until  his  death  No- 
vember 24,  1743.  In  1723  John  Read  was  chosen  and 
held  office  until  1728.  Mr.  Read  was  born  about  1677 
and  graduated  at  Harvard  in  1697.  He  studied  divinity, 
and  after  preaching  for  a  time  studied  law  and  was  ad- 
mitted to  the  bar  about  .  1720.  He  was  again  chosen 
Attorney  General  in  1733,  34,  35  and  in  1738  was  chosen 
to  the  General  Court,  the  first  lawyer  chosen  to  that 
body.  He  was  a  member  of  the  Council  and  one  of  the 
Attorneys  of  Massachusetts  in  the  memorable  contest 
with  Rhode  Island  concerning  the  boundary  line,  and 
probably  the  ablest  lawyer  in  Massachusetts  before  the 
Revolution.  He  died  February  7, 1749.  Joseph  Hiller 
was  chosen  June  19,  1728.  In  1736  and  1737  William 
Brattle  was  chosen.  Mr.  Brattle,  son  of  Rev.  William, 
was  born  in  Cambridge,  Mass.,  in  1702,  and  graduated 
at  Harvard  in  1722.  After  studying  theology  and 
preaching  for  a  time,  he  practiced  medicine  and  finally 
became  a  lawyer.  He  was  a  Representative  and  a  Mem- 
ber of  the  Council  from  1755  to  1768.  He  Avas  a  Lo}ral- 
ist,  and  retiring  to  Halifax,  died  there  in  October,  1776. 

Jeremiah  Gridley  was  chosen  Attorney  General  in 
1742  and  held  the  office  one  year.  He  was  born  about 
1705  and  graduated  at  Harvard  in  1725,  and  in  1767  was 
appointed  to  the  office  of  Attorney  General  for  the  sec- 
ond time  by  the  Governor  and  Council.  Before  enter- 
ing the  profession  he  studied  divinity  and  taught  school. 
In  1761,  acting  under  a  temporary  appointment  as  At- 
torney General,  he  defended  the  writs  of  assistance. 
James  Otis,  who  has  been  already  noticed,  was  appointed 
6 


82 


JUDICIAL  HISTORY 


in  1748  and  held  the  office  one  year.  After  that  time 
the  Governor  and  Council  assumed  the  right  to  appoint 
the  Attorney  General,  and  Edmund  Trowbridge  was 
appointed  June  29,  1749,  and  held  office  until  he  was 
appointed  Judge  of  the  Superior  Court  in  1767,  when 
Mr.  Gridley  was  again  appointed.  Before  the  end  of 
the  year  Jonathan  Sewall  was  appointed,  November  18, 
1767,  and  was  the  last  Attorney  General  before  the 
Revolution.  Mr.  Sewall  has  already  been  noticed  as 
one  of  the  Judges  of  the  Admiralty  Court. 

In  the  early  part  of  1767  the  office  of  Solicitor  General 
was  established,  and  on  the  24th  of  June  in  that  37ear 
Jonathan  Sewall  was  appointed  five  months  before  he 
was  appointed  Attorney  General.  Samuel  Quincy,  the 
last  Solicitor  General  before  the  Revolution  was  ap- 
pointed March  21,  1771. 

Mr.  Quincy,  son  of  Josiah,  was  born  in  Braintree, 
Mass.,  in  1735  and  graduated  at  Harvard  in  1754.  He 
was  bred  as  a  lawyer,  and  as  far  as  the  writer  knows, 
the  office  of  Solicitor  General  was  the  only  one  held  by 
him.  At  the  Revolution  he  adhered  to  the  Crown,  and 
on  the  25th  of  May,  1775,  sailed  for  England,  and  in 
1776  was  a  member  of  the  Loyalist  Association  in  Lon- 
don. He  was  proscribed  and  banished  by  the  act  of 
1778,  and  in  1779  was  appointed  Comptroller  of  the  Cus- 
toms at  the  Port  of  Parham  in  Antigua.  In  1789,  on 
his  passage  from  Antigua  to  London,  he  died  at  sea. 

As  the  Governors  of  the  province  were  more  or  less 
associated  with  the  Judiciary,  it  will  be  proper  to  in- 
clude a  list  of  them  in  this  narration  with  a  short  notice 
of  each.  The  first  Governor  under  the  charter  was  Sir 
William  Phipps,  who  was  appointed  in  1692.  He  was 
born  in  Pemmaquid,  now  Bristol,  Maine,  February  2, 
1651,  and  died  in  London,  February  18,  1695.  He  was 
the  son  of  a  gunsmith  and  one  of  twenty-six  children, 


OF  MASSACHUSETTS. 


83 


twenty-one  of  whom  were  boys.  After  learning  the 
trade  of  ship  carpenter  he  wont  to  Boston  and  learned 
to  read  and  write.  He  then  built  a  vessel  and  engaged 
in  commerce.  In  1684  he  went  to  England  to  procure 
means  to  recover  property  from  a  Spanish  ship  wrecked 
near  the  Bahamas.  A  first  expedition  for  that  purpose 
having  failed  he  undertook  a  second  and  recovered  in 
bullion,  coin  and  plate,  £300,000,  after  which  he  was 
knighted  by  James  the  Second.  In  1690  he  captured 
Port  Royal,  and  later  commanded  an  expedition  against 
Canada,  composed  of  thirty-four  vessels,  with  fifteen 
hundred  sailors  and  thirteen  hundred  soldiers.  The  en- 
terprise was  abandoned,  with  the  loss  of  nine  vessels 
wrecked.  In  1692  he  was  appointed  Captain  General 
and  Governor  of  Massachusetts,  and  in  August  of  that 
year  embarked  with  four  hundred  and  fifty  men  and 
built  a  fort  at  Pemmaquid.  In  1694  he  was  summoned 
to  England  to  answer  complaints  of  his  administration, 
and  shortly  after  died  at  the  date  above  mentioned. 

After  the  departure  of  Governor  Phipps,  Lieutenant 
Governor  William  Stoughton  became  Acting  Governor 
until  May  26, 1699,  when  Richard  Coote,  Earl  of  Bello- 
mont,  arrived  at  Boston  from  England  by  the  way  of 
New  York  as  the  successor  of  Governor  Phipps.  Rich- 
ard Coote  was  born  in  England  in  1636  and  died  in  New 
York  March  5, 1701.  He  was  raised  to  the  peerage  for 
services  at  the  restoration  of  Charles  the  Second.  He 
was  a  member  of  Parliament  in  1688  and  one  of  the  first 
to  declare  his  adherence  to  William  of  Orange.  He  was 
attainted  by  the  Parliament  held  by  James  the  Second 
in  Dublin,  in  16S9  and  in  the  same  year  made  Earl  of 
Bellomont  and  appointed  Treasurer  and  Receiver  Gen- 
eral of  Queen  Mary.  In  1695  he  was  made  Governor  of 
New  York.  After  a  year's  stay  in  Boston  he  returned 
to  New  York  where  he  died  in  1701  and  was  buried  in 


84 


JUDICIAL  HISTORY 


St.  Paul's  churchyard.  After  the  retirement  of  Bello- 
mont  to  New  York,  Lieutenant  Governor  William 
Stoughton  acted  as  Governor  until  his  death  in  1701, 
when  the  Council  became  the  governing  power,  until 
June  11,  1702,  when  Joseph  Dudley  became  Governor,  of 
whom  a  notice  has  been  already  given.  After  the  retire- 
ment of  Dudley  in  1715  Lieutenant  William  Taylor  acted 
as  Governor  one  year  and  also  acted  as  Governor  after  the 
retirement  of  Lieutenant  Governor  Dummer.  He  was 
born  in  1676,  was  commander  of  the  Ancient  and  Hon- 
orable Artillery  Company  in  1712  and  was  in  England 
in  1721.  He  commanded  a  regiment  at  Port  Royal,  and 
died  on  his  estate  in  Dorchester,  Mass.,  March  8,  1732. 
Samuel  Shute  was  appointed  Governor  October  4, 1716, 
He  was  born  in  London  in  1653  and  died  in  England 
April  15, 1 742.  He  was  brought  up  a  dissenter  and  edu- 
cated at  the  University  of  Leyden  in  Holland,  but  later 
became  connected  with  the  established  church.  He  was 
in  the  army  under  William  of  Orange  and  Marlborough 
in  the  Netherlands  as  lieutenant  colonel. 

From  December  27, 1722,  to  July  13, 1728,  Lieutenant 
Governor  William  Dummer  acted  as  Governor.  Mr. 
Dummer  was  born  in  Boston  in  1677.  He  was  appointed 
Lieutenant  Governor  in  1716,  and  continued  in  office 
until  1730.  After  the  death  of  Governor  Burnet  in  1728, 
he  again  acted  as  Governor  during  the  remainder  of  his 
official  term.  He  died  in  Boston,  October  10,  1761. 
AVilliam  Burnet  succeeded,  July  13,  1728.  He  was  born 
at  the  Hague  in  March,  1688,  the  son  of  Bishop  Burnet, 
and  William  of  Orange  was  his  godfather.  He  arrived 
in  America  as  Governor  of  New  York  and  New  Jersey, 
September  17, 1720.  In  1722  he  established  a  trading  fort 
at  Oswego,  and  in  1727  built  at  that  place  the  first  fort  on 
the  border.  He  was  removed  April  15, 1728,  and  trans- 
ferred to  Massachusetts  at  the  date  above  mentioned. 


OF  MASSACHUSETTS. 


85 


Jonathan  Belcher  became  Governor  August  S,  1730, 
and  held  office  until  1741.  He  was  son  of  Andrew  and 
born  January  8,  1681.  He  graduated  at  Harvard  in 
1699  and  afterwards  spent  six  years  in  Europe.  He  en- 
gaged in  business  in  Boston  and  in  1729  was  Colonial 
Agent  in  England.  After  his  retirement  from  office  in 
Massachusetts  he  was  appointed  Governor  of  New  Jer- 
sey and  died  at  Elizabethtown  in  that  State  August  31, 
1757.  William  Shirley  who  has  been  noticed  as  one  of 
the  Advocates  General  of  the  Admiralty  Court  was  ap- 
pointed Governor  August  17,  1741,  and  held  office  until 
September  25,  1756.  In  1749  and  again  in  1756  Lieu- 
tenant Governor  Spencer  Phipps  acted  as  Governor.  He 
was  born  in  Rowley,  Mass.,  June  6,  1685,  and  was  son 
of  Dr.  David  Bennet  of  Rowley  and  nephew  of  Sir  Wil- 
liam Phipps  by  whom  he  was  adopted  and  whose  name 
he  was  authorized  to  take.  He  graduated  at  Harvard 
in  1703,  and  died  in  Boston,  April  4,  1757.  After  the 
death  of  Lieutenant  Governor  Phipps  the  Council  was 
the  governing  power  until  August  3, 1757,  when  Thomas 
Pownall  became  Governor.  Governor  Pownall  was 
born  in  Lincoln,  England  in  1720,  and  his  father  was  in 
the  English  civil  service  in  India.  He  came  to  America 
in  October,  1753,  as  the  Secretary  of  Sir  Danvers  Os- 
borne, Royal  Governor  of  New  York.  In  1755,  he  was 
appointed  Commissioner  for  Massachusetts  to  negotiate 
with  New  York  authorities  concerning  operations 
against  the  French.  In  the  same  year  he  was  appointed 
Lieutenant  Governor  of  New  Jersey  and  in  1760  after 
his  retirement  from  Massachusetts  he  was  made  Governor 
of  South  Carolina.  In  1767  he  was  a  member  of  Par- 
liament and  opposed  taxation  of  the  colonies.  He  died 
in  Bath,  England,  February  25,  1S05.  In  1760,  Lieu- 
tenant Governor  Thomas  Hutchinson  acted  as  Governor 
from  June  3d  to  August  1st,  and  was  appointed  Gov- 


86 


JUDICIAL  HISTORY 


ernor  in  March,  1771,  serving  until  1774.  He  was  son 
of  Thomas  and  was  born  in  Boston,  September  9, 1711, 
and  graduated  at  Harvard  in  1727.  He  was  a  Select- 
man and  Representative  and  from  1761  to  1769  Chief 
Justice  of  the  Superior  Court  of  Judicature.  He  pub- 
lished a  history  of  Massachusetts  down  to  1750,  and  in 
1771  went  to  England  where  he  died  in  the  town  of 
Brompton,  June  3, 1780.  Sir  Francis  Bernard  Bart  suc- 
ceeded as  Governor  August  1,  1760.  He  was  born  in 
Nettleham,  Lincolnshire,  in  1714  and  graduated  at  Ox- 
ford in  1736.  He  studied  law  in  the  Middle  Temple  and 
became  Steward  of  Lincoln  and  Recorder  of  Barton, 
England.  In  1768  he  was  appointed  Governor  of  New 
Jersey.  In  1769  he  was  recalled  and  died  in  Aylesbury, 
England,  June  16,  1779.  Thomas  Gage  succeeded  Gov- 
ernor Hutchinson,  May  13,  1774.  He  was  the  son  of 
Thomas  Gage,  Viscount  Gage  of  Castle  Island  and  Baron 
Gage,  and  was  born  in  Firle  Sussex  in  1721.  In  1747 
he  was  a  major  in  the  army  and  at  Braddock's  defeat 
as  lieutenant  colonel  distinguished  himself.  In  1758 
he  was  at  Ticonderoga  as  Colonel  and  was  made  Mili- 
tary Governor  of  Montreal  in  1760.  In  1763  he  was 
made  Commander  in  Chief  of  America,  and  in  1773  re- 
turned to  England.  On  the  13th  of  May,  1774,  he  ar- 
rived in  Boston  with  the  commission  of  Governor,  and 
put  into  effect  the  port  bill  and  the  regulation  act.  He 
was  recalled  and  sailed  for  England,  October  10, 1775. 

The  Judges  of  the  Superior  Court  of  Judicature  which 
continued  during  the  whole  of  the  provincial  period  and 
until  February  20,  1781,  were  as  follows : 

Chief  Justices. 
William  Stoughton  appointed  1692 ;  Wait  Winthrop 
appointed  1701 ;  Isaac  Addington  appointed  1702 ;  Wait 
Winthop  appointed  1708  ;  Samuel  Sewall  appointed 


OF  MASSACHUSETTS. 


87 


1718;  Benjamin  Lynde  appointed  1729;  Paul  Dud- 
ley appointed  1745;  Stephen  Sewall  appointed  1752; 
Thomas  Hutchinson  appointed  1761 ;  Benjamin  Lynde, 
Jr.,  appointed  1769 ;  Peter  Oliver  appointed  1772  ;  John 
Adams  appointed  1775  ;  William  Cushing  1777.  . 

Associate  Justices. 

Thomas  Danforth  appointed  1692;  Wait  Winthrop 
appointed  1692  ;  John  Richards  appointed  1692  ;  Sam- 
uel Sewall  appointed  1692 ;  Elisha  Cooke  appointed 
1695 ;  John  Walley  appointed  1700 ;  John  Saffin  ap- 
pointed 1701;  John  Hathorne  appointed  1702;  John 
Leverett  appointed  1702;  Jonathan  Curvvin  appointed 
1708;  Benjamin  Lynde  appointed  1712;  Nathaniel 
Thomas  appointed  1712;  Addington  Davenport  ap- 
pointed 1715  ;  Edmund  Quincy  appointed  1718;  Paul 
Dudley  appointed  1718  ;  John  Cushing  appointed  1728; 
Jonathan  Remington  appointed  1733 ;  Richard  Salton- 
stall  appointed  1736  ;  Thomas  Graves  appointed  1737 ; 
Stephen  Sewall  appointed  1739;  Nathaniel  Hubbard 
appointed  1715  ;  Benjamin  Lynde,  Jr.,  appointed  1715  ; 
John  Cushing  appointed  1747;  Chambers  Russell  ap- 
pointed 1752 ;  Peter  Oliver  appointed  1756 ;  Edmund 
Trowbridge  appointed  1767 ;  Foster  Hutchinson  ap- 
pointed 1771 ;  Nathaniel  Ropes  appointed  1772 ;  William 
Cushing  appointed  1772;  William  Brown  appointed 
1774;  Nathaniel  P.  Sargeant  appointed  1775;  William 
Reed  appointed  1775 ;  Robert  Treat  Paine  appointed 
1775  ;  James  Warren  appointed  1776  ;  Jedediah  Foster 
appointed  1776  ;  James  Sullivan  appointed  1776 ;  David 
Sewall  appointed  1777. 

Of  the  above  lists  John  Adams  and  James  Warren 
never  took  their  seats.  Besides  the  standing  Justices 
of  the  Superior  Court  of  Judicature  special  Justices 
were  appointed  to  act  when  the  standing  Justices  were 


88 


JUDICIAL  HISTORY 


parties  in  interest.  An  examination  of  the  records  by 
the  writer  has  disclosed  the  following  special  appoint- 
ments : 

Penn  Townsend,  October  24,  1712 ;  Nathaniel  Nor- 
den,  October  24,  1712;  John  Burrill,  October  24,1712; 
Addington  Davenport,  September  16,  1715;  John 
Clark,  January  7,  1718 ;  Thomas  Fitch,  January  7, 

1718  ;  John  Clark,  June  27, 1719  ;  Thomas  Fitch,  June  7, 

1719  ;  Josiah  Wolcott,  December  15, 1720  ;  John  Gush- 
ing, September  6, 1723  ;  John  Clark,  September  6, 1723 ; 
Jonathan  Remington,  September  6, 1723 ;  Thomas  Fitch, 
December  10,  1725;  Job  Alray,  September  1,  1726; 
Elisha  Cooke,  February  23,  1726-7 ;  Jonathan  Reming- 
ton, February  23,  1726-7;  Isaac  Winslow,  June  19, 
1727  ;  John  Cushing,  June  19, 1727 ;  Nathaniel  By  field, 
June  27,  1727;  Thomas  Fitch,  June  27,  1727;  Jona- 
than Remington,  June  27,  1727 ;  Nathaniel  Byfield, 
December  12,  1728  ;  Thomas  Fitch,  December  12, 1728  ; 
Theophilus  Burrill,  December  12, 1728  ;  Jonathan  Rem- 
ington, December  12,  1728  ;  Nathaniel  Byfield,  Decem- 
ber 19,  1728;  Adam  Winthrop,  December  19,  1728; 
Nathaniel  Byfield,  January  11,  1732-3;  Adam  Win- 
throp, June  22,  1733  ;  Thomas  Cushing,  June  22, 1733  ; 
Ezekiel  Lewis,  June  22,  1733;  Theophilus  Burrill, 
April  19,  1735;  Joseph  Wilder,  April  19,  1735;  Sam- 
uel Thaxter,  June  27,  1735  ;  Thomas  Berry,  June  27, 
1735;  Benjamin  Prescott,  June  27,  1735;  Thomas 
Greaves,  February  10,  1736-7;  Job  Almy,  October  25, 
1737  ;  Thomas  Greaves,  November  10, 1737;  Benjamin 
Prescott,  November  10, 1737 ;  Seth  AVilliams,  August  12, 
1738;  Benjamin  Marston,  August  12,  173S ;  William 
Ward,  August  19,  1738;  Seth  Williams,  March  2, 
1738-9;  William  Ward,  March  2,  1738-9;  Edward 
Hutchinson,  May  2, 1739  ;  Joseph  Wilder,  May  2, 1739  ; 
Stephen  Sewall,  May  2, 1739  ;  Ebenezer  Burrill,  June  15, 


OF  MASSACHUSETTS. 


89 


1739 ;  Thomas  Berry,  January  24,  1739-40 ;  Benjamin 
Marston,  January  24,  1739-40 ;  Edward  Hutchinson, 
April  1 8, 1743  ;  Nathaniel  Hubbard,  April  18, 1743  ;  Ed- 
ward Hutchinson,  November  3,  1743;  Nathaniel  Hub- 
bard, November  3,  1743;  John  disking,  October,  23, 
1744;  Sylvanus  Bourne,  October  23,  1744;  John  Gush- 
ing, August  19,  1747;  Sylvanus  Bourne,  August  19, 
1747;  Joseph  Pynchon,  August  19,  1747;  John  Green- 
leaf,  April  6, 1748 ;  Ezekiel  Cheever,  January  11, 1748-9  ; 
Charles  Russell,  January  11,  174S-9;  John  Jeffries, 
March  2,  1748-9;  William  Brattle,  March  2,  1748-9; 
Thomas  Hubbard,  March  2,  1748-9;  Joseph  Sawyer, 
June  19,  1749;  Nathaniel  Sparhawk,  June  19,  1749; 
Ezekiel  Cheever,  August  12,  1749;  Joseph  Richards, 
August  12, 1 749  ;  Charles  Russell,  February  23, 1749-50 ; 
Simon  Frost,  February  23,  1749-50;  Samuel  Danforth, 
August  24,  1753;  Ezekiel  Cheever,  August  24,  1753; 
Thomas  Hutchinson,  September  20,  1754;  Thomas 
Hutchinson,  February  21,  1755 ;  William  Brattle, 
June  26,  1755 ;  Andrew  Oliver,  February  13,  1756 ; 
William  Brattle,  February  13,  1756;  John  Chandler, 
February  20,  1756;  Andrew  Oliver,  February  20,  1756; 
Benjamin  Lincoln,  August  1,  1758;  Samuel  White, 
August  1,  1758  ;  Timothy  Ruggles,  February  23,  1762  ; 
Samuel  Danforth,  August  10,  1762;  Nathaniel  Ropes, 
September  7,  1762  ;  Nathaniel  Ropes,  August  30,  1770  ; 
Jedediah  Foster,  September  17,  1770;  Timothy  Paine, 
February  14,  1771;  Joseph  Lee,  February  17,  1773; 
William  Browne,  February  17,  1773;  Joseph  Lee, 
March  4,  1773  ;  William  Browne,  March  4, 1773. 

There  were  also  Commissioners  of  Oyer  and  Terminer 
appointed  by  the  Governor  and  Council  to  try  special 
cases  in  accordance  with  authority  given  in  the  charter 
as  follows : 


90 


JUDICIAL  HISTORY 


"  And  we  do  further  grant  and  ordain  that  it  shall  and 
may  be  lawful  for  the  said  Governor  with  the  advice  and  con- 
sent of  the  Council  or  Assistants  from  time  to  time  to  nomi- 
nate and  appoint  judges,  commissioners  of  Oyer  and  Terminer, 
sheriffs,  provosts,  marshals,  Justices  of  the  Peace  and  other 
officers  to  our  council  aud  courts  of  justice  belonging." 

It  is  probable  that  Governor  Phipps  assumed  the 
right  under  this  clause,  to  organize  in  1692  the  Court  of 
Oyer  and  Terminer  for  the  witchcraft  trials.  The  fol- 
lowing is  a  list  of  Commissioners  appointed  at  various 
times  including  the  witchraft  Judges : 

William  Stoughton,  John  Richards,  Wait  Winthrop, 
Bartholomew  Gedney,  Samuel  Sewall,  Jonathan  Curwin, 
Peter  Sergeant,  appointed  June  2,  1692,  to  take  cogni- 
zance of  all  crimes  in  Suffolk,  Essex  and  Middlesex 
(witchcraft). 

Francis  Hooke,  Charles  Frost,  Samuel  Wheelwright, 
Thomas  Newton,  appointed  October,  22,  1692,  to  try 
murderers  in  the  County  of  York. 

Thomas  Danforth,  Wait  Winthrop,  Elisha  Cooke, 
Samuel  Sewall,  appointed  December  22,  1698,  to  try 
Jacob  Smith. 

John  Hathorne,  William  Browne,  Jonathan  Curwin, 
Benjamin  Brown,  John  Higginson,  appointed  Novem- 
ber 23,  1703,  to  try  an  Indian  in  Salem. 

John  Gardner,  James  Coffin,  Thomas  Mayhew,  Ben- 
jamin Skiff e,  William  Gayer,  appointed  June  15,  1704, 
to  try  an  Indian  in  Nantucket. 

Joseph  Hammond,  Ichabod  Plaisted,  John  Plaisted, 
William  Pepperell,  John  Wheelwright,  John  Hill,  Lewis. 
Bane  or  any  four  of  them  appointed  November  8,  1707, 
to  try  Joseph  Gunnison  for  murder. 

Wait  Winthrop,  Samuel  Sewall,  John  Hathorne, 
Jonathan  Curwin,  Elisha  Hutchinson,  appointed  March  7,, 
1711. 


OF  MASSACHUSETTS. 


91 


Nathaniel  Thomas,  John  Otis,  James  Warren,  John 
Gorham,  appointed  June  5, 1713,  to  try  two  Indians  for 
capital  crimes. 

Samuel  Partridge,  John  Pynchon,  John  Parsons, 
John  Stoddard,  appointed  December  3,  1718,  to  try  at 
Northampton,  Ovid  Ruchbrock  for  counterfeiting  bills 
of  credit  of  the  Province. 

John  dishing,  Sylvanus  Bourne,  Zacheus  Mayhew,. 
Enoch  Coffin,  John  Otis,  appointed  June  23, 1713,  to  try 
an  Indian  at  Nantucket. 

John  dishing,  Sylvanus  Bourne,  Zacheus  Mayhew, 
Enoch  Coffin,  John  Otis,  appointed  August  9,  1716,  for 
a  trial  at  Nantucket. 

Short  notices  have  already  been  given  of  the  following 
members  of  the  Superior  Court  of  Judicature  in  con- 
nection with  other  official  positions  held  by  them : 
William  Stoughton,  Wait  Winthrop,  Samuel  Sewall,. 
Benjamin  Lynde,  Thomas  Hutchinson  and  Paul  Dudley. 
It  will  be  proper  to  include  in  this  narrative  short 
sketches  of  the  other  members  of  the  Court. 

Isaac  Aldington,  appointed  Associate  Justice  in  1702 
and  Chief  Justice  in  1703,  was  son  of  Isaac  and  born 
in  Boston,  January  22,  1615.  He  was  educated  as  a 
surgeon  but  engaging  in  public  affairs  became  a  member 
of  the  House  of  'Representatives  and  Speaker  in  1685. 
In  16S6  he  was  an  Assistant,  and  after  the  deposition  of 
Andros  was  made  Secretary  of  the  Colony,  an  office 
which  he  continued  to  hold  under  the  charter  until  his 
death.  He  was  Judge  of  the  Inferior  Court  of  Common 
Pleas  for  Suffolk  County,  from  March  3,  1693  to  1702, 
when  he  was  appointed  to  the  Superior  Bench.  He  died 
March  19,  1715. 

Benjamin  Lynde,  Jr.,  appointed  Associate  Justice  of 
the  Superior  Court  in  1745,  and  Chief  Justice  in  1769,, 
was  son  of  Chief  Justice  Benjamin  Lynde  and  born  in 


92 


JUDICIAL  HISTORY 


Salem,  October  5,  1700.  He  graduated  at  Harvard  in 
1718  and  in  1739  was  appointed  Judge  of  the  Inferior 
Court  of  Common  Pleas  for  Essex  County.  He  re- 
signed his  seat  as  Chief  Justice  in  1771  and  was  appointed 
Judge  of  Probate  for  Essex  County,  holding  that  posi- 
tion until  his  death,  October  9,  1781. 

Peter  Oliver  was  son  of  Daniel  and  born  in  Boston, 
March  26,  1713.  He  graduated  at  Harvard  in  1730, 
and  after  establishing  himself  in  Middleboro,  Mass.,  was 
appointed  in  1747,  Judge  of  the  Inferior  Court  of  Com- 
mon Pleas  for  Plymouth  County,  and  held  that  position 
until  1756,  when  he  was  appointed  Associate  Justice  of 
the  Superior  Court  of  Judicature.  In  1772  he  was  made 
Chief  Justice  to  succeed  Benjamin  Lynde,  Jr.,  who  had 
resigned.  In  1774  by  a  modification  of  the  charter  the 
salaries  of  the  Judges  were  made  payable  by  the  Crown, 
and  the  salary  of  the  Chief  Justice  was  increased  to 
£100.  All  the  Judges  except  Oliver  refused  to  receive 
their  salaries  from  the  Crown.  In  1775  he  left  the 
bench  and,  loyal  to  the  King,  went  to  England  in  1776 
and  died  in  Birmingham,  England,  October  13,  1791. 
During  his  residence  in  England  he  received  the  degree 
of  LL.  D.  from  the  University  of  Oxford. 

Thomas  Danforth,  son  of  Nicholas,  was  born  in  Eng- 
land in  1622.  He  was  an  Assistant  from  1659  to  1678, 
and  Deputy  Governor  from  1679  to  1686.  In  1692  he 
was  appointed  Associate  Justice  of  the  Superior  Court 
and  remained  on  the  bench  until  his  death,  November  5, 
1699. 

John  Richards,  son  of  Thomas,  was  born  in  England 
and  came  to  Massachusetts  with  his  father  in  1/30.  He 
was  treasurer  of  Harvard  College  from  1669  to  1682, 
and  from  1686  to  1693.  He  was  a  Deputy  from  New- 
bury from  1671  to  1673,  from  Hadley  in  1675,  and 
from  Boston  in  1679-S0,  serving  during  the  last  two 


OF  MASSACHUSETTS. 


93 


years  as  Speaker  of  the  House.  He  was  an  Assistant 
from  1680  to  1GS6,  and  sat  as  Associate  Justice  on 
the  bench  of  the  Superior  Court  from  1692  to  1694. 
He  died  April  2,  1694. 

Elisha  Cooke,  appointed  Associate  Justice  in  1695, 
was  son  of  Richard,  and  born  in  Boston,  September  16, 
1637.  He  graduated  at  Harvard  in  1657,  and  was  edu- 
cated as  a  physician.  He  was  a  member  of  the  House 
of  Representatives  from  1681  to  1683,  Speaker  of  the 
House  in  1683,  and  Assistant  from  1684  to  1686.  He 
died  October  31,  1715. 

John  Walley,  appointed  in  1700  Associate  Justice,  was 
son  of  Rev.  Thomas  AValley,  and  born  in  Barnstable, 
and  was  an  Assistant  in  the  Plymouth  Colony  from 
1684  to  16S6.  In  1679  he  was  commander  of  the  An- 
cient and  Honorable  Artillery  Company  and  served  in 
1690  in  the  expedition  against  Quebec  as  commander 
of  the  land  forces.  He  was  one  of  the  founders  of  the 
town  of  Bristol,  and  died  in  Boston,  January  11,  1712. 

John  Saffin,  appointed  Associate  Justice  of  the  Supe- 
rior Court  in  1701,  was  born  in  England,  and  coming  to 
Massachusetts  in  1650  settled  in  Scituate.  He  after- 
wards removed  to  Boston  and  was  Speaker  of  the  House 
of  Representatives  in  1686.  In  1688  he  removed  to 
Bristol  and  was  appointed  Judge  of  Probate  for  Bris- 
tol County  which  then  included  the  town  of  Bristol, 
and  held  that  office  until  his  appointment  to  the  Supe- 
rior Court.    He  died  at  Bristol  July  29,  1710. 

John  Hawthorne,  appointed  Associate  Justice  in  1702 
was  son  of  William  and  born  in  Salem  about  1641.  He 
was  an  Assistant  from  1684  to  1686  and  continued  on 
the  bench  until  June,  1712.  He  died  in  Boston  May  10, 
1717. 

John  Leverett,  appointed  Associate  Justice  in  1702 
was  the  grandson  of  Governor  John  Leverett  and  born 


94 


JUDICIAL  HISTORY 


in  Boston  August  25, 1662.  He  graduated  at  Harvard 
in  1680,  and  after  studying  divinity,  was  educated  as  a 
lawyer.  He  was  speaker  of  the  House  of  Representa- 
tives in  1700  and  Judge  of  Probate,  and  the  successor 
of  Samuel  Willard  as  President  of  Harvard  College  in 

1707.  He  remained  on  the  bench  until  1707,  and  died 
May  3,  1724. 

Jonathan   Curwin,  appointed  Associate  Justice  in 

1708,  was  bom  in  Salem  in  November,  1640.  In  1692 
he  was  appointed  by  Governor  Phipps  one  of  the  Judges 
to  try  the  alleged  witches  in  the  place  of  Nathaniel 
Saltonstall,  who  had  declined.  In  the  same  year  he 
was  appointed  Judge  of  the  Inferior  Court  of  Com- 
mon Pleas  for  Essex  County,  and  held  that  office  until 
his  appointment  to  the  Superior  Court.  He  resigned 
in  1715  and  died  in  June,  1718. 

Nathaniel  Thomas,  appointed  Associate  Justice  in 
1712,  was  the  son  of  Nathaniel  and  Deborah  (Jacobs) 
Thomas,  and  was  born  in  Marshfield  about  1665.  He 
was  a  great  grandson  of  William  Thomas,  one  of  the 
merchants  of  London,  who  assisted  the  Pilgrims  in 
their  enterprise,  and  came  to  Massachusetts  in  1630, 
and  settled  in  Marshfield.  He  was  bred  as  a  lawyer 
and  took  the  oath  as  an  Attorney  of  the  Superior  Court 
in  1686.  He  was  a  Judge  of  the  Inferior  Court  of 
Common  Pleas  for  Plymouth  County  from  1702  to 
1712.  Judge  Washburn,  in  his  Judicial  History,  errs 
in  stating  that  General  John  Thomas  of  the  Revolution 
was  a  descendant  of  Nathaniel.  The  General  belonged 
to  an  entirely  distinct  family,  and  was  descended  from 
John  Thomas,  who  came  an  orphan  from  London  in 
1635,  in  the  ship  Hopewell.  General  Thomas  married 
Hannah  Thomas,  a  granddaughter  of  Judge  Nathaniel, 
and  thus  the  descendants  of  the  General  can  claim  both 
William  of  1630  and  John  of  1635  as  their  ancestors. 


OF  MASSACHUSETTS. 


95 


Judge  Thomas  left  the  Superior  bench  in  1718,  and 
died  in  the  same  year. 

Addington  Davenport,  appointed  Associate  Justice 
in  1715,  was  the  son  of  Eleazer  and  Rebecca  (Adding- 
ton) Davenport,  and  was  born  August  3,  1670.  He 
graduated  at  Harvard  in  16S9,  and  was  Clerk  of  the 
first  House  of  Representatives,  under  the  charter  in 
1692,  and  in  1695  was  appointed  Clerk  of  the  Superior 
Court  of  Judicature.  He  was  later  appointed  Clerk  of 
the  Inferior  Court  of  Common  Pleas  for  Suffolk  County 
and  Register  of  Deeds.  In  1711  he  was  chosen  member 
of  the  Council,  and  was  a  representative  in  1711-12, 
13.    He  remained  on  the  bench  until  his  death  in  1736. 

Edmund  Quincy,  appointed  Associate  Justice  in  1718, 
was  the  son  of  Edmund  Quincy,  and  was  born  in  Brain- 
tree,  Mass.,  October  21,  1681.  He  graduated  at  Har- 
vard in  1699,  and  in  1713  was  commissioned  Colonel  of 
the  Suffolk  regiment.  He  was  Representative  many 
years,  and  in  1715  was  chosen  member  of  the  Council. 
In  1737  he  was  appointed  agent  of  Massachusetts  and 
went  to  England  in  the  performance  of  his  duties 
touching  the  boundary  line  between  Massachusetts  and 
New  Hampshire,  while  still  holding  his  seat  on  the 
bench.  He  was  inoculated  for  the  small  pox  in  Lon- 
don, and  died  of  the  disease  February  23,  1737. 

John  Cushing,  appointed  Associate  Justice  in  1728, 
was  born  in  Scituate,  Mass.,  in  1662.  He  was  appointed 
Chief  Justice  of  the  Inferior  Court  of  Common  Pleas 
for  Plymouth  County  in  1702,  and  held  his  seat  until 
appointed  to  the  Superior  Court.  He  remained  on  the 
bench  until  his  death  in  Scituate  in  1737. 

Jonathan  Remington,  appointed  Associate  Justice 
in  1733,  was  born  in  Cambridge  about  1677,  and  grad- 
uated at  Harvard  in  1696.  He  was  appointed  Chief 
Justice  of  the  Inferior  Court  of  Common  Pleas  for 


96 


JUDICIAL  HISTORY 


Middlesex  County  in  1715,  to  succeed  John  Phillips,  and 
in  1731  was  made  Judge  of  Probate  of  that  County. 
He  remained  on  the  bench  until  his  death,  September 

20,  1715. 

Richard  Saltonstall,  appointed  Associate  Justice  in 
1736,  was  the  son  of  Richard  and  Mehitable  (Wain- 
wright)  Saltonstall,  was  born  in  Haverhill,  Mass.,  June 

21,  1703,  and  graduated  at  Harvard  in  1722.  He  was 
a  member  of  the  Council  from  1713  to  1715,  and  re- 
mained on  the  bench  until  his  death,  October  20,  1756. 

Thomas  Greaves  or  Graves,  appointed  Chief  Justice 
in  173S,  to  supply  the  place  of  Edmund  Quincy  during 
his  absence  in  England  as  agent  of  the  province,  was 
born  in  Charlestown  in  1681,  and  graduated  at  Harvard 
in  1703.  He  was  educated  as  a  physician.  In  1731  he 
was  appointed  Special  Judge  of  the  Inferior  Court  of 
Common  Pleas  for  Middlesex  County,  and  in  1735 
Special  Judge  of  the  same  Court  for  Suffolk  County, 
and  in  1737  Special  Judge  of  the  Superior  Court.  In 
1733  he  was  appointed  Judge  of  the  Inferior  Court  for 
Middlesex  County,  and  while  acting  as  Judge  of  the 
Superior  Court  in  the  place  of  Mr.  Quinc}^,  Francis  Fox- 
croft  acted  as  his  substitute.  On  the  death  of  Mr. 
Quincy,  Stephen  Sewall  was  appointed  Judge  of  the 
Superior  Court  and  Judge  Greaves  returned  to  his 
place  on  the  Inferior  Court  bench,  where  he  remained 
until  his  death,  June  19,  1717. 

Nathaniel  Hubbard,  appointed  Associate  Justice  in 
1715,  probably  grandson  of  Rev.  William  Hubbard,  was 
born  about  1679.  In  1729  he  was  appointed  Deputy 
Judge  of  Admiralty  for  Bristol  County  and  Rhode 
Island,  and  the  Narraganset  Country,  and  from  1728  to 
1715  was  Judge  of  the  Inferior  Court  for  Bristol  County. 
He  resided  many  years  in  the  town  of  Bristol,  but  the 
writer  has  been  unable  to  learn  where  he  lived  after 


OF  MASSACHUSETTS. 


97 


Bristol  was  set  off  to  Rhode  Island.  He  remained  on 
the  bench  until  his  death  in  1747. 

John  Cushing,  appointed  "Associate  Justice  in  1747, 
was  son  of  Judge  John  Cushing  above  mentioned  and 
was  born  in  Scituate,  Mass.,  in  1695.  From  1746  to 
1763,  he  was  a  member  of  the  Council,  and  from  1738  to 
1746,  Judge  of  Probate  for  Plymouth  County.  From 
1738  to  1747,  he  was  Judge  of  the  Inferior  Court  of 
Common  Pleas  for  Plymouth  County.  He  resigned  his 
seat  on  the  Superior  bench  in  1771  and  died  in  1778. 

Chambers  Russell,  appointed  Associate  Justice  in  1752, 
was  son  of  Daniel  Russell  ami  born  in  Charlestown  in 
1713.  He  graduated  at  Harvard  in  1731  and  estab- 
lished himself  in  Concord  and  represented  that  town  in 
the  General  Court.  From  1747  to  1752,  he  was  Judge 
of  the  Inferior  Court  of  Common  Pleas  for  Middlesex 
County  and  a  member  of  the  Council  in  1759  and  1760. 
In  1747,  he  was  appointed  Judge  of  Vice- Admiralty 
over  New  Hampshire,  Massachusetts  and  Rhode  Island, 
and  was  one  of  the  few  Judges  of  his  time  educated  to 
the  law.  lie  remained  on  the  Superior  bench  until  his 
death  which  occurred  in  Guilford,  England,  Novem- 
ber 24,  1766. 

Edmund  Trowbridge,  appointed  Associate  Justice  in 
1767,  was  born  in  Newton  in  1709  and  graduated  at 
Harvard  in  1727.  He  was  educated  to  the  law,  and  in 
1749  was  appointed  Attorney  General  of  the  Province. 
In  1764  and  1765  he  was  a  member  of  the  Council. 
He  resigned  his  seat  in  the  Superior  Court  in  1775  and 
died  in  Cambridge,  April  2,  1793. 

Foster  Hutchinson,  appointed  Associate  Justice  in 
1771,  was  a  brother  of  Governor  Thomas  Hutchinson 
and  son  of  Thomas,  a  Boston  merchant.  He  was  born 
in  Boston  about  1702  and  graduated  at  Harvard  in 
1721.  He  was  appointed  Judge  of  the  Inferior  Court 
7 


98 


JUDICIAL  HISTORY 


of  Common  Pleas  for  Suffolk  County  in  1758  and  re- 
mained on  the  bench  until  he  was  promoted  to  the 
Superior  Court.  In  1769  he  was  appointed  Judge  of 
Probate  for  Suffolk  County  and  retained  that  office  to- 
gether with  his  seat  on  the  Superior  bench  until  the 
Revolution,  when,  being  a  Loyalist,  he  went  to  Eng- 
land and  there  died. 

Nathaniel  Ropes,  appointed  Associate  Justice  in  1772, 
was  born  in  Salem,  May  20,  1726,  and  graduated  at 
Harvard  in  1745.  He  was  a  member  of  the  Council 
from  1762  to  1769,  and  in  1761  was  appointed  Judge  of 
Probate  for  Essex  County  and  Chief  Justice  of  the 
Inferior  Court  of  Common  Pleas  for  that  County.  He 
remained  on  the  Superior  bench  until  his  death  March  18, 
1771. 

William  Browne,  appointed  Associate  Justice  in  1774, 
was  born  in  Salem,  February  27,  1737,  and  graduated 
at  Harvard  in  1755.  He  was  many  years  a  Represen- 
tative from  Salem,  and  Judge  of  the  Inferior  Court  of 
Common  Pleas  for  Essex  County  from  1770  to  1774. 
He  remained  on  the  Superior  bench  until  the  Revolu- 
tion when  he  left  the  country  a-nd  was  made  Governor 
of  Bermuda.    He  died  in  England,  February  13,  1802. 

William  Cushing,  appointed  Associate  Justice  in 
1772,  was  the  son  of  Judge  John  Cushing,  and  born  in 
Scituate  March  1,  1732.  He  graduated  at  Harvard  in 
1751,  and  studied  law  with  Jeremiah  Gridleyin  Boston 
and  established  himself  in  Pownalboro,  Maine.  In 
1760  he  was  appointed  Judge  of  Probate  of  Lincoln 
County.  In  1777  he  was  appointed  Chief  Justice  of 
the  Superior  Court,  and  after  the  reorganization  of  the 
court  in  November,  1775,  he  was  retained  on  the  bench 
as  Associate  Justice,  and  John  Adams  was  appointed 
Chief  Justice.  Mr.  Adams  never  took  his  seat,  and 
on  his  resignation,  Judge  Cushing  was,  in  1777,  made 


OF  MASSACHUSETTS. 


99 


Chief  Justice.  In  1789  he  was  appointed  Associate 
Justice  of  the  United  States  Supreme  Court.  In  1787 
he  was  President  of  th6  Massachusetts  Convention  to 
act  on  the  adoption  of  the  Constitution  of  the  United 
States.  He  acted  as  Presiding  Judge  of  the  United 
States  Supreme  Court,  during  the  absence,  in  Europe, 
of  Chief  Justice  Jay,  and  on  the  resignation  of  Judge 
Jay,  in  1796,  he  was  appointed  Chief  Justice.  This  ap- 
pointment he  declined,  remaining,  however,  on  the 
bench  as  Associate  Justice  until  his  death,  September 
13,  1810.  His  body  lies  in  a  modest  burial  ground, 
near  the  railroad,  in  the  town  of  Nor  well,  which  was 
formerly  a  part  of  Scituate. 

Nathaniel  Peaslee  Sargeant,  appointed  Associate 
Justice  on  the  reorganization  of  the  court  in  1775,  was 
the  son  of  Bev.  Christopher  Sargeant,  and  born  in 
Methuen,  Mass.,  November  2,  1731.  He  graduated  at 
Harvard  in  1750,  and  established  himself  in  the  prac- 
tice of  law  in  Haverhill.  He  was  a  delegate  to  the 
Provincial  Congress,  and  in  1790,  when  Chief  Justice 
William  dishing  left  the  Superior  Court  to  take  his 
seat  in  the  United  States  Supreme  Court,  Judge  Sar- 
geant succeeded  him  as  Chief  Justice.  He  remained 
on  the  bench  until  his  death,  which  occurred  at  Haver- 
hill in  October,  1791. 

William  Keed,  appointed  Associate  Justice  on  the  re- 
organization of  the  court  in  1775,  was  of  Boston.  In 
1776  he  was  Deputy  Judge  of  the  Admiralty  Court, 
and  in  1768  was  a  Barrister.  In  1770  he  was  appointed 
Judge  of  the  Inferior  Court  of  Common  Pleas  for  Suf- 
folk County,  and  held  that  office  until  the  Kevolution. 
In  the  next  year,  after  his  appointment  to  the  Superior 
Court,  he  was  superseded,  and  died  in  17S0. 

James  Warren,  appointed  Associate  Justice  in  1776, 
never  took  his  seat.    He  was  the  son  of  James  and 


100 


JUDICIAL  HISTORY 


Penelope  (Winslow)  Warren  of  Plymouth,  and  a  de- 
scendant from  Richard  Warren  of  the  Mayflower.  He 
was  born  in  Plymouth,  September  28,  1726,  and  in  1757 
was  appointed  High  Sheriff  for  Plymouth  County,  and 
held  that  position  until  the  Revolution.  In  1778  he 
proposed  the  establishment  of  Committees  of  Cor- 
respondence and  Safety,  and  after  the  death  of  Dr. 
Joseph  Warren  at  Bunker  Hill,  succeeded  him  as  Pres- 
ident of  Provincial  Congress.  In  1775,  while  the  army 
was  in  Cambridge,  he  was  made  Paymaster  General, 
and  afterwards  Major  General  of  the  Militia.  After 
the  adoption  of  the  Constitution,  he  was  for  two  years 
Speaker  of  the  House  of  Representatives,  and  was  of- 
fered the  position  of  Secretary  of  the  Navy,  which  he 
declined.  The  Sloop  of  War  "  Warren,"  lost  on  the 
coast  of  Maine,  was  named  in  his  honor.  He  married 
Mercy  Otis,  sister  of  the  Patriot  James  Otis,  and  died  in 
Plymouth,  November  27,  1808. 

Robert  Treat  Paine  was  appointed  Associate  Justice 
in  1776,  but  declined.  He  was  son  of  Thomas  and 
Eunice  (Treat)  Paine,  and  was  born  in  Boston,  March 
11,  1731.  He  graduated  at  Harvard  in  1719,  and  re- 
ceived a  degree  of  LL.  D.  in  1805.  After  leaving 
college  he  taught  school,  and  afterwards  made  three 
voyages  to  North  Carolina  as  master,  and  one  to  Green- 
land for  whales.  Later  he  studied  for  the  ministry,  and 
served  for  a  time  as  chaplain  in  the  French  War.  He 
afterwards  studied  law  with  Judge  Willard  in  Lancas- 
ter, and  with  Benjamin  Pratt  in  Boston,  and  was  ad- 
mitted to  the  Suffolk  Bar  in  1759.  He  first  established 
himself  in  practice  at  Boston,  and  afterwards  in  Taun- 
ton, which  town  he  represented  in  the  General  Court 
in  1769.  In  1770,  in  the  absence  of  the  Attorney  Gen- 
eral, he  conducted  the  prosecution  of  Capt.  Preston, 
the  officer  in  command  at  the  Boston  massacre,  and  in 


OF  MASSACHUSETTS. 


101 


1774-5  was  a  delegate  to  the  Provincial  Congress.  He 
was  a  member  of  the  Ccntinental  Congress,  and  in 
1777  Speaker  of  the  House  of  Kepresentatives.  Dur- 
ing the  Resolution  he  was  appointed,  in  1780,  Attorney 
General  to  succeed  Jonathan  Sewall,  and  held  office 
until  the  appointment  of  James  Sullivan,  February  12, 
1790.  In  1779  he  was  a  member  of  the  State  Consti- 
tutional Convention,  and  in  1780  removed  to  Boston, 
where  he  occupied  the  residence  of  Governor  Shirley, 
on  the  corner  of  Milk  and  Federal  Streets.  In  1790  he 
was  appointed  a  Judge  of  the  Supreme  Judicial  Court, 
which  position  he  held  until  his  resignation  in  1804. 
As  a  lawyer,  judge  and  signer  of  the  Declaration  of  In- 
dependence, his  name  has  been  made  immortal.  He 
died  in  Boston,  May  11,  1814. 

Jedediah  Foster,  appointed  Associate  Justice  in  1776, 
was  born  in  Andover,  Mass.,  October  10,  1726,  and 
graduated  at  Harvard  in  1744.  He  settled  as  a  lawyer 
in  Brookfield,  Mass.,  and  was  a  delegate  to  the  Prov- 
incial Congress  in  1774-5.  He  remained  on  the  bench 
until  his  death,  October  17,  1779. 

James  Sullivan,  appointed  Associate  Justice  in  1776, 
was  the  son  of  John  and  Margery  (Brown)  Sullivan, 
and  born  in  Berwick,  Maine,  April  22,  1744.  He  was 
educated  chiefly  by  his  father,  and  studied  law  with  his 
brother  John  at  Durham,  N.  H.  Before  1782  he  was 
a  member  of  the  Suffolk  bar,  but  before  that  time  he 
practiced  ten  years  in  Biddeford,  Maine.  He  was  a 
delegate  to  the  Provincial  Congress  from  Biddeford  in 
1774-5,  and  a  member  of  the  General  Court  in  1775-6. 
He  was  appointed  to  the  Superior  Bench,  March  20, 
1776,  and  resigned  in  1782.  In  177S  he  removed  from 
Biddeford  to  Groton,  and  in  1779  was  a  delegate  from 
that  town  to  the  Massachusetts  Constitutional  Conven- 
tion.   In  1782  he  was  a  delegate  to  the  Continental  Con- 


102 


JUDICIAL  HISTORY 


gress  and  in  1787  a  member  of  the  Executive  Council. 
In  1788  he  was  appointed  Judge  of  Probate,  in  1790  At- 
torney General,  and  in  1807  was  chosen  Governor, 
dying  in  office  in  Boston,  December  10,  1808. 

David  Sewall,  appointed  Associate  Justice  in  1777, 
was  the  son  of  Samuel  and  was  born  in  York,  Maine, 
October  7,  1735.  He  graduated  at  Harvard  in  1755, 
and  studied  law  with  Judge  William  Parker  of  Ports- 
mouth, N.  H.  He  established  himself  in  York,  was 
appointed  Kegister  of  Probate  in  1766  and  Judge  of  the 
Superior  Court  in  1777.  In  1779  he  was  appointed 
Judge  of  the  United  States  District  Court,  and  re- 
mained on  the  bench  until  1818.  He  died  at  York, 
October  12,  1825. 

John  Adams  was,  on  the  reconstruction  of  the  court, 
appointed  Chief  t  Justice  in  1775,  but  never  took  his 
seat,  and  resigned  the  next  year.  Of  a  person  so  uni- 
versally known  as  Mr.  Adams  it  is  unnecessary  to 
speak,  except  for  the  purpose  of  making  this  narrative 
complete.  He  was  the  son  of  John  and  Susanna 
(Boylston)  Adams,  and  was  born  in  Braintree,  Mass., 
October  31,  1735.  He  graduated  at  Harvard  in  1755, 
and  after  studying  law  in  Worcester,  he  began  practice 
in  Boston  in  1758,  while  retaining  his  residence  in 
Braintree.  He  moved  to  Boston  in  1768,  and  was  soon 
after  made  a  Barrister.  In  1770  he  was  one  of  the 
counsel  defending  Captain  Preston  and  others  in  com- 
mand of  British  soldiers  at  the  so-called  Boston  massacre, 
and  in  the  same  year  was  chosen  Representative.  He 
was  a  delegate  to  the  Congress  of  1774  and  1775,  a  mem- 
ber of  Provincial  Congress,  and  President  of  the  Board  of 
War  in  1776-7,  and  in  1777  was  appointed  Commis- 
sioner to  France.  He  was  appointed  by  Congress  Min- 
ister to  treat  with  Great  Britain  for  peace  in  1779,  and 
in  1780  was  sent  to  Holland  to  negotiate  a  loan.  With 


OF  MASSACHUSETTS. 


103 


Franklin  and  Jay  he  negotiated,  a  treaty  of  commerce 
with  Great  Britain,  and  in  1785  was  sent  Minister  to  the 
Court  of  St.  James.  In  1788  he  was  chosen  Yice  Pres- 
ident, and  in  1796  President.  In  1820  he  was  a  dele- 
gate to  the  Massachusetts  State  Convention,  and  died 
in  Quincy,  Mass.,  July  4,  1826. 

As  has  been  previously  stated,  an  act  passed  in  1692 
establishing  Courts  was  disallowed  by  the  Privy  Council 
in  1695,  and  another  passed  in  1696  was  also  disallowed 
in  1698.  The  Courts  named  in  the  above  acts  went 
into  operation  and  Judges  were  appointed  for  the  same 
at  the  time  of  the  first  enactment,  in  1692,  under  a 
clause  in  the  charter  which  provided  that  all  laws 
should  be  sent  to  England,  and  if  not  disallowed  within 
three  years  they  should  continue  in  force.  The  word 
"  continue  "  implied  that  they  should  go  into  effect  on 
their  enactment  and  that  a  disallowance  should  operate 
only  as  a  repeal.  Of  course,  a  repeal  of  the  laws  oper- 
ated as  a  discontinuance  of  the  Courts  established  un- 
der them  and  made  new  commissions  for  the  Judges 
necessary. 

It  will  be  remembered  that  in  May,  1699,  three  acts 
were  passed  as  substitutes  for  the  acts  which  had  been 
disallowed,  which  received  royal  approval.  These  acts 
established  three  courts,  —  a  Court  of  General  Sessions 
of  the  Peace,  an  Inferior  Court  of  Common  Pleas,  and 
a  Superior  Court  of  Judicature.  Abstracts  of  the  first 
and  last  of  these  have  already  been  given,  and  before 
entering  more  particularly  on  the  second  it  will  be 
proper  to  state  its  provisions  somewhat  in  detail.  It 
provided  as  follows:  "That  there  shall  be  held  and 
kept  in  each  respective  county  within  the  province,  and 
at  the  island  of  Nantucket  within  the  same,  yearly  and 
every  year,  at  the  times  and  places  in  this  act  hereafter 
mentioned  and  expressed,  an  Inferior  Court  of  Common 


104 


JUDICIAL  HISTORY 


Pleas,  by  four  substantial  persons,  to  be  appointed  and 
commissionated  as  justices  of  the  same  court  in  each 
county,  any  three  of  whom  to  be  a  quorum  for  the 
holding  of  the  said  court,  who  shall  have  cognizance  of 
all  civil  actions  arising  or  happening  within  such  coun- 
ty, triable  at  the  common  law  of  what  nature,  kind  or 
quality  soever,  and  are  hereby  empowered  to  give  judg- 
ment thereon  and  award  execution  thereupon." 

It  further  provided  "  that  all  processes  and  writs  for 
the  bringing  any  cause  or  suit  to  trial  in  any  of  the 
said  inferior  courts  shall  issue  out  of  the  clerk's  office 
of  such  court  in  his  Majesty's  name,  under  the  seal  of 
the  said  court,  to  be  signed  by  the  clerk  and  directed  to 
the  sheriff  or  marshal  of  the  county,  his  under-sheriff 
or  deputy,  and  if  such  process  or  writ  be  against  the 
sheriff  or  marshal,  to  be  directed  to  the  coroner  of  such 
county,  who  is  hereby  empowered  to  execute  the  same, 
and  when  the  sum  sued  for  is  under  ten  pounds,  may  be 
also  directed  to  the  constables  of  the  town  ;  and  writs 
as  well  original  as  judicial,  issuing  out  of  the  clerk's 
office  of  the  said  court,  shall  run  into  any  county  and 
place  within  this  province  and  be  there  executed  by  the 
officer  or  officers  of  such  county  to  whom  they  are 
directed ;  and  all  proper  original  processes  in  the  said 
court  shall  be  summons,  capias  or  attachment,  which 
shall  be  served  and  executed  fourteen  days  before  the 
day  of  the  sitting  of  the  court  where  such  writ  or 
process  is  returnable.  Provided  that  no  action  under 
the  value  of  forty  shillings  shall  be  brought  into  any  of 
the  said  inferior  courts,  unless  where  freehold  is  con- 
cerned or  upon  appeal  from  a  justice  of  the  peace." 

And  it  further  provided  that  "  in  convenient  time, 
before  the  sitting  of  the  said  Inferior  Court  in  each  re- 
spective County,  the  Clerk  of  such  court  shall  issue  out 
warrants  directed  to  the  constables  of  the  several  towns 


OF  MASSACHUSETTS. 


105 


within  the  same  county,  or  the  mort  principal  of  them, 
requiring  them  to  assemble  the  freeholders  and  other 
inhabitants  of  their  towns  qualified  as  in  and  by  his 
Majesty's  royal  charter  is  directed  to  elect  and  choose 
so  many  good  and  lawful  men  of  the  said  town  or  dis- 
tricts thereof,  alike  qualified  as  aforesaid  as  the  war- 
rant shall  direct,  to  serve  as  jurors  at  such  court ;  and 
the  constable  shall  summon  the  person  so  chosen  to 
attend  accordingly,  at  the  time  and  place  appointed, 
and  make  timely  return  of  his  warrant  unto  the  Clerk 
that  granted  the  same,  on  pain  that  every  constable  fail- 
ing of  his  duty  therein,  shall  forfeit  and  pay  into  the 
County  Treasury,  for  the  use  of  the  county,  a  fine  not 
exceeding  five  pounds,  nor  less  than  forty  shillings,  at 
the  discretion  of  the  Justices  of  such  court;  unless 
such  constable  so  failing  of  his  duty  as  aforesaid  shall 
seasonably  make  a  reasonable  excuse  unto  the  Justices 
of  said  court  for  his  default,  and  the  same  be  allowed 
by  them.  And,  if  by  reason  of  challenge  or  otherwise, 
there  do  not  appear  a  sufficient  number  of  good  and 
lawful  men  to  make  up  the  petty  jury  or  juries  to  serve 
at  the  said  court,  then  and  in  such  case  the  said  jury 
or  juries  shall  be  filled  up  &  talibus  circumstantibus, 
to  be  returned  by  the  Sheriff,  and  where  the  Sheriff  is 
concerned  or  related  to  either  of  the  parties  in  any  case, 
to  be  returned  by  the  Coroner." 

During  the  life  of  the  province,  no  other  laws  were 
passed  touching  the  courts,  except  one  passed  in  1701, 
entitled  "An  act  for  regulating  of  trials  in  civil 
causes."  That  act  provided  that  all  writs,  indictments, 
entries,  etc.,  in  the  several  courts  should  be  in  the 
English  tongue  ;  that  no  summons,  process,  writ,  etc., 
shall  be  abated  for  any  kind  of  circumstantial  error, 
where  the  person  and  case  may  be  rightly  understood 
and  intended  by  the  court,  nor  through  defect  or  want 


106 


JUDICIAL  HISTORY 


of  form  only ;  that  the  several  courts  may  make  rules 
for  practice,  and  appoint  Clerks ;  that  Town  Clerks  as 
well  as  Court  Clerks  may  grant  summons  for  wit- 
nesses; that  witnesses  shall  receive  two  shillings  per 
day  for  travel  and  expenses ;  and  that  appeals  to  the 
Superior  Court  of  Judicature  within  thirty  days  may 
be  had  from  the  Inferior  Court  of  Common  Pleas. 

At  the  time  the  Inferior  Court  of  Common  Pleas 
went  into  operation,  in  1692,  that  part  of  the  province 
which  now  constitutes  the  Commonwealth  of  Massa- 
chusetts included  the  following  Counties :  Barnstable, 
Bristol,  Dukes  County,  Essex,  Hampshire,  Middlesex, 
Nantucket,  Plymouth  and  Suffolk.  Only  two  other 
Counties  were  incorporated  during  the  life  of  the  prov- 
ince, Berkshire  incorporated  April  21, 1761,  and  Worces- 
ter April  2,  1731. 

It  will  be  well  to  bear  in  mind  that  the  Counties  of 
Nantucket  and  Dukes  County  though  not  incorporated 
until  June  22, 1695,  were  made  parts  of  the  Province  by 
its  charter  and  were,  therefore,  for  the  purposes  of  this 
narrative,  practically  Counties  when  the  Inferior  Court 
Act  was  passed  in  1692.  Beginning  with  Barnstable 
County  in  the  description  of  the  Inferior  Courts  of  Com- 
mon Pleas  the  town  of  Barnstable  has  always  been  its 
shire  town,  and  the  present  courthouse  was  built  to 
replace  an  earlier  one  which  was  burned  in  1827,  with 
the  loss  of  many  valuable  records.  The  Judges  of  the 
Inferior  Court  for  the  County,  as  nearly  as  the  writer 
can  learn,  were  as  follows :  Barnabas  Lothrop,  appointed 
December  7,  1692 ;  John  Freeman  appointed  Decem- 
ber 7,  1692  ;  John  Thacher  appointed  December  7, 
1692 ;  Stephen  Skiff e,  appointed  December  7,  1692 ; 
Jonathan  Sparrow  appointed  March  6,  1694-5  ;  John 
Otis  appointed  June  29,  1702;  William  Bassett  ap- 
pointed June  22, 1710  ;  John  Gorham  appointed  July  20, 


OF  MASSACHUSETTS. 


107 


1711 ;  Daniel  Parker  appointed  June  5,  1713  ;  Thomas 
Paine  appointed  June  5,  1711;  Nathaniel  Freeman  ap- 
pointed December  10,  1715;  Isaac  Lothrop  appointed 
November  15,  1721 ;  Ezra  Bourne  appointed  Decem- 
ber 26,  1727;  Peter  Thacher  appointed  April  10,  1729; 
Joseph  Lothrop  appointed  April  10, 1729  ;  Shubael  Bax- 
ter appointed  April  10,  1729  ;  John  Otis,  Jr.,  appointed 
August  10,  1716 ;  David  Crocker  appointed  August, 
1717 ;  Thomas  Smith  appointed  August,  1758 ;  John 
Thacher  appointed  June  2,  1758;  Thomas  Winslow, 
appointed  June  2,  1758 ;  Sylvanus  Bourne  appointed 
June  2,  1758;  James  Otis  appointed  February,  1761; 
Edward  Bacon  appointed  February,  1761 ;  Daniel  Davis 
appointed  October  11,  1775  ;  Nathaniel  Freeman  ap- 
pointed October  11,  1775 ;  Richard  Baxter  appointed 
October  11,  1775. 

The  special  Justices  were  as  follows :  Nathaniel 
Thomas  appointed  November  9,  1705 ;  John  Cushing 
appointed  November  9, 1705  ;  Samuel  Sturgis  appointed 
July  11,  1715  ;  Meletiah  Bourne  appointed  July  14, 
1715 ;  Samuel  Sturgis  appointed  June  27,  1719 ;  Na- 
thaniel Freeman  appointed  June  27,  1719  ;  Josiah  Ed- 
son  appointed  March  16,  1721-2 ;  Jacob  Thompson 
appointed  March  16,  1721-2;  Joseph  Doane  appointed 
January  9, 1722-3  ;  Meletiah  Bourne  appointed  Decem- 
ber 15,  1721;  Samuel  Sturgis  appointed  December  15, 
1721 ;  Nathaniel  Freeman  appointed  December  15, 1721 ; 
Nathaniel  Freeman  appointed  April  10,  1729 ;  Samuel 
Sturgis  appointed  April  10,  1729;  Samuel  Sturgis  ap- 
pointed December  21,  1 730 ;  Nathaniel  Freeman  ap- 
pointed December  21,  1730 ;  Samuel  Sturgis  appointed 
September  1,  1731 ;  John  Doane  appointed  June  22, 
1736 ;  John  Davis  appointed  June  22,  1736 ;  John 
Russell  appointed  December  21,  1739 ;  David  Crocker 
appointed  January  27,  1742-3 ;  Thomas  Winslow  ap- 


108 


JUDICIAL  HISTORY 


pointed  September  13,  1753 ;  Roland  Robinson  ap- 
pointed December  19, 1759 ;  Roland  Robinson  appointed 
January  21,  1762;  Roland  Cotton,  appointed  Jan- 
uary 22,  1762;  Roland  Cotton  appointed  April  7,  1763; 
John  Gorham,  appointed  June  20, 1765  ;  Isaac  Hinckley 
appointed  May  9, 1770 ;  Chillingworth  Foster  appointed 
May  9,  1770 ;  Joseph  Nye  appointed  May  9,  1775. 

The  following  short  sketches  of  the  standing  Judges 
are  worthy  of  a  place  in  this  narrative  : 

Barnabas  Lothrop  was  son  of  Rev.  John  Lothrop, 
who  came  from  Lowthropp,  Yorkshire,  in  1631  and 
settled  first  in  Scituate  and  in  1639  in  Barnstable.  He 
was  born  in  Scituate  in  1636  and  baptized  June  6  in 
that  year.  He  was  a  Deputy  in  the  Colonial  Court 
from  1675  to  1685  and  Judge  of  Probate  for  Barnstable 
County  from  1702  to  1714.  He  was  also  an  Assistant 
from  1681  to  1686  and  one  of  the  Council  of  Governor 
Phipps.  He  served  on  the  Common  Pleas  bench  from 
December  7,  1692,  until  his  death,  October  26,  1715. 

John  Freeman,  son  of  Edmund,  was  born  in  Eng- 
land in  1622,  and  came  to  New  England  with  his 
father.  He  settled  first  in  Barnstable,  but  removed  to 
Eastham  about  1650.  He  was  an  Assistant  in  1666, 
1678,  1682  and  1686.  He  resigned  his  seat  on  the 
bench  in  1695  and  died  October  28,  1719.  It  is  possible 
that  the  Judge  was  his  son,  though  considering  his 
vigorous  old  age,  it  is  not  improbable  that  he  was  ap- 
pointed Judge  at  the  age  of  seventy. 

John  Thatcher,  was  son  of  Anthony,  who  came  from 
Salisbury,  England,  in  1635  and  settled  first  in  Marble- 
head  and  later  in  Yarmouth,  Mass.  He  was  born  in 
1639  and  sat  on  the  bench  from  December  7,  1692,  until 
his  death,  May  8,  1713. 

Stephen  Skiff e  was  perhaps  of  Sandwich,  and  con- 
tinued on  the  bench  until  1710. 


OF  MASSACHUSETTS. 


109 


Jonathan  Sparrow  was  born  in  England  and  came  to 
Plymouth  with  his  brother  Richard  and  mother  Pan- 
dora, in  1632.  The  family  removed  to  Eastham  in  1656, 
and  he  served  on  the  Inferior  Court  bench  until  1702. 

John  Otis  was  grandson  of  General  John,  who  was 

born  in  Barnstable,  Devonshire,  in  1581,  and  came  to 

Hingham  in  1635  and  son  of  John,  who  was  born  in 

England  in  1620  and  came  with  his  father  to  Hing- 
es o 

ham,  Scituate  and  Barnstable.  Judge  Otis  was  born 
in  Scituate  in  1657  and  served  on  the  Inferior  Court 
bench  from  1702  until  his  death,  November  30,  1727, 
being  thirteen  years  Chief  Justice.  At  the  time  of  his 
death  he  was  also  Judge  of  Probate,  having  been  ap- 
pointed in  1711.  He  was  grandfather  of  James  Otis, 
the  patriot,  so-called. 

William  Bassett  was  son  of  William,  of  Sandwich, 
and  grandson  of  William,  who  came  to  Plymouth  in 
the  ship  Fortune  in  1621.  He  was  Marshal  of  Plym- 
outh Colon}r  at  the  time  of  its  union  with  the  Massa- 
chusetts Colony  in  1692.  He  served  on  the  bench  from 
1710  until  his  death,  which  occurred  at  Sandwich,  Sep- 
tember 29,  1721,  in  the  sixty-fifth  year  of  his  age.  He 
was  also  Register  of  Probate  from  1702  to  1721. 

John  Gorham  was  son  of  John,  who  was  born  in 
Benefield,  Northamptonshire,  England,  in  1620,  and 
coming  to  Plymouth,  married,  in  1613,  Desire,  daughter 
of  John  Howland.  He  was  born  in  Marshfield,  Mass., 
February  20,  1651-2,  and  sat  on  the  bench  from  1711 
to  1711.  He  served  with  his  father  in  King  Philip's.  H 
War,  and  in  the  Canada  expedition  of  1690  was  Captain 
and  Lieutenant  Colonel. 

Daniel  Parker  was  of  Barnstable,  and  remained  on 
the  Inferior  Court  bench  from  1713  to  his  death,  De- 
cember 23,  1728,  at  the  age  of  fifty-nine  years. 


110 


JUDICIAL  HISTORY 


Of  Thomas  Paine  the  writer  knows  nothing,  except 
that  he  was  an  Inferior  Court  Judge  from  1714  to  1721. 

Of  Nathaniel  Freeman  the  writer  knows  nothing, 
except  that  he  was  appointed  Judge  in  1715  to  succeed 
Barnabas  Lothrop. 

Isaac  Lothrop,  son  of  Meletiah  and  Sarah  (Farrar) 
Lothrop,  was  born  in  Barnstable,  Mass.,  June  23,  1671, 
and  married,  in  1698,  Elizabeth,  daughter  of  Jonathan 
Barnes,  of  Plymouth.  He  remained  on  the  bench  from 
1721  to  1710. 

Ezra  Bourne,  appointed  December  26,  1727,  was  son 
of  Shearjashub  Bourne,  of  Sandwich,  and  grandson  of 
Richard,  one  of  the  early  settlers  of  that  town.  He 
was  several  years  Chief  Justice,  and  died  in  September, 
1761,  aged  eighty -eight  years. 

Peter  Thacher,  appointed  Judge  April  10,  1729,  and 
Chief  Justice  September  2,  1731,  was  probably  son  of 
Peter  Thacher,  of  Yarmouth,  and  was  born  in  1669. 
Judge  Washburn  errs  in  stating  that  he  was  son  of 
John  Thacher,  born  in  1615  and  died  at  the  age  of 
seventy-one.  If  he  were  the  son  of  John,  and  born  in 
1615,  he  would  have  been  eighty-four  years  of  age  when 
appointed.  He  sat  on  the  bench  until  1736  and  died 
in  1739. 

Joseph  Lothrop,  appointed  in  1729,  was  son  of 
Meletiah  and  brother  of  Judge  Isaac  Lothrop.  He  was 
born  in  Barnstable,  December  15,  1675,  and  remained 
on  the  bench  until  his  death,  February  11,  1717-8. 

Shubael  Baxter,  appointed  in  1731,  was  in  1739  a 
Special  Justice  of  the  Nantucket  Common  Pleas  Court. 
The  writer  knows  nothing  more  of  his  career. 

John  Otis,  Jr.,  son  of  Chief  Justice  John  Otis,  was 
born  in  Barnstable,  in  1711,  and  was  appointed  Judge 
in  1716.  He  was  also  a  Representative  and  member  of 
the  Council,  and  died  May  4,  1758. 


OF  MASSACHUSETTS. 


Ill 


David  Crocker,  appointed  Judge  in  17-17,  was  son  of 
Job  and  Hannah  (Taylor)  Crocker,  and  was  born  in 
Barnstable,  Mass.,  September  5,  1697.  He  graduated 
at  Harvard  in  1716,  and  remained  on  the  bench  until 
175 S.  He  married,  first,  November  12,  1724,  Abigail, 
daughter  of  David  Loring,  and,  second,  January  27, 
1757,  Mrs.  Abigail  Stuart,  and  died  in  1761. 

Thomas  Smith,  appointed  in  1758,  belonged  to  Sand- 
wich and  was  a  physician.  He  held  office  until  the 
Revolution,  and  in  1785,  was  reappointed  to  the  reor- 
ganized court. 

John  Thacher,  appointed  in  1758,  was  probably  a 
brother  of  Judge  Peter  Thacher  above  mentioned,  and 
was  born  in  Barnstable  in  January,  1674.  He  was  also 
Register  of  Deeds,  and  died  March  17,  1764. 

Thomas  Winslow,  appointed  in  1758,  was  son  of 
Kenelm  and  Bethiah  (Hall)  Winslow,  and  was  born  in 
Yarmouth,  Mass.  He  remained  on  the  bench  until  the 
Eevolution. 

Sylvanus  Bourne,  appointed  in  1758,  was  son  of  Mel- 
etiah  Bourne,  and  was  born  in  Sandwich,  in  1693.  He 
was  Register  of  Probate  from  1729  to  1740,  and  Judge 
of  Probate  from  1740  to  1764.  During  a  part  of  his 
service  on  the  bench  he  was  Chief  Justice.  He  died 
September  18,  1763. 

James  Otis,  appointed  Chief  Justice  in  1764,  was  son 
of  John  and  Mercy  (Bacon)  Otis,  and  was  born  in  Barn- 
stable, in  1702.  He  became  eminent  as  a  lawyer,  and 
in  1748  was  appointed  Attorney  General,  holding  that 
office  one  year.  He  was  Speaker  of  the  House  of  Rep- 
resentatives in  1760,  and  in  1764  was  appointed  Judge 
of  Probate  as  well  as  Chief  Justice  of  the  Common 
Pleas  Court.  He  married  Mary,  daughter  of  Joseph 
Allyne  of  Wethersfield,  Conn.,  and  James  Otis,  the 
patriot,  was  his  son.    He  died  in  November,  1778. 


112 


JUDICIAL  HISTORY 


Edward  Bacon,  appointed  in  1764,  was  son  of  Samuel 
and  Mary  (Huckins)  Bacon,  and  was  born  in  Barnstable, 
January  23,  1711-15.  He  married,  September  7,  1744, 
Patience,  daughter  of  Benjamin  Marston,  and  died 
March.  16,  1783.  He  remained  on  the  bench  until  the 
Revolution. 

Daniel  Davis,  appointed  in  1775,  was  son  of  Joseph 
and  Hannah  (Cobb)  Davis,  and  was  born  in  Barnstable, 
September  28,  1713.  He  married,  first,  Mehitabel, 
daughter  of  Thomas  Lothrop,  and,  second,  Mehitabel 
Sturgis.  He  was  a  Representative  and  Judge  of  Pro- 
bate and  died  April  22,  1799. 

Nathaniel  Freeman,  appointed  in  1775,  was  a  phy- 
sician and  lived  in  Barnstable.  He  held  many  offices 
besides  that  of  Judge.  He  was  born  in  Dennis,  April  8, 
1741  and  later  studied  law  with  James  Otis.  He  was 
Judge  of  Probate,  a  member  of  the  House  of  Represen- 
tatives, and  a  member  of  Congress  from  1795  to  1799. 

Of  Richard  Baxter,  appointed  in  1775,  the  writer 
knows  nothing. 

Berkshire  County  was  incorporated  April  21,  1761, 
and  the  act  of  incorporation  provided  that  the  town  of 
Sheffield  should  be  the  shire  and  the  county  offices  were 
located  in  the  North  Parish  of  that  town,  which  in  June, 
1761,  was  incorporated  as  the  town  of  Great  Barring- 
ton.  Thus  Great  Barrington  became  the  shire,  and  the 
courts  were  appointed  to  be  held  in  that  town  the  last 
Tuesday  in  April  and  the  first  Tuesday  in  September, 
and  at  Pittsfield  on  the  first  Tuesdays  in  March  and 
December.  The  Judges  of  the  Inferior  Court  of  Com- 
mon Pleas  appointed  for  the  County  were  Joseph  D  wight 
of  Great  Barrington,  Chief  Justice  in  1761,  William 
Williams  of  Pittsfield,  Associate  Justice  in  1761  and 
Chief  Justice  in  1765,  Timothy  Woodbridge  of  Stock- 
bridge,  Associate  Justice  in  1761,  John  Ashley  of  Shef- 


OF  MASSACHUSETTS. 


113 


field,  Associate,  1765,  Perez  Marsh  of  Dalton,  Associate, 
1T65,  John  Ashley  of  Sheffield,  1769,  John  Bacon  of 
Stockbridge,  Associate,  1769,  William  Whiting  of  Great 
Barrington,  Associate,  1769,  John  Brown  of  Great  Bar- 
rington,  Associate,  1769,  William  Whiting  of  Great 
Barrington,  Associate,  1781,  Jahleel  Woodbridge  of 
Stockbridge,  Associate,  1781,  and  James  Barker  of 
Lanesboro,  Associate,  1781.  The  Judges  met  at  the 
house  of  Judge  Woodbridge  in  Stockbridge,  July  13, 
1761,  and  appointed  Elijah  D  wight  of  Great  Barring- 
ton Clerk  of  the  Courts,  and  Mark  Hopkins  Begister 
of  Deeds.  The  first  sessions  of  the  Court  in  Great  Bar- 
rington were  held  in  the  meeting  house,  and  those  in 
Pittsfield  in  a  large  room  in  Fort  Anson.  In  1761  and 
1 765  a  courthouse  was  built  in  Great  Barrington  near 
the  middle  of  Main  Street  opposite  Castle  Street.  Thus 
county  affairs  stood  until  after  the  Revolution. 

Joseph  D  wight,  appointed  Chief  Justice  in  1761,  was 
born  in  Hatfield,  Mass.,  October  16,  1703,  and  gradu- 
ated at  Harvard  in  1722.  He  was  admitted  to  the  bar 
at  Worcester  in  1731  and  was  the  first  member  of  the 
Worcester  County  bar.  He  settled  in  Brookfield  and 
was  at  one  time  Speaker  of  the  House  of  Representa- 
tives of  which  he  was  a  member  eleven  years.  In  1713 
he  was  appointed  Judge  of  the  Common  Pleas  Court 
for  Worcester  County  but  resigned  in  1751  and  removed 
to  Stockbridge.  He  afterwards  removed  to  Great  Bar- 
rington and  remained  on  the  bench  as  Chief  Justice  of 
the  Berkshire  County  Court  of  Common  Pleas  until  his 
death,  June  9, 1765.  He  was  a  Brigadier  General  at  the 
capture  of  Louisburg  in  1715  and  served  in  1756  at  Lake 
Champlain  in  the  Second  French  war. 

William  Williams,  appointed  Associate  in  1761,  and 
on  the  death  of  Joseph  D wight,  1765,  Chief  Justice, 
was  one  of  the  earliest  settlers  of  Pittsfield,  and  rep- 
8 


114 


JUDICIAL  HISTORY 


resented  that  town  for  many  years  in  the  General 
Court.  He  was  appointed  Judge  of  Probate  for  Berk- 
shire County  in  1765,  and  after  the  reorganization  of 
the  Court,  having  served  until  that  time,  was  reap- 
pointed Chief  Justice  in  1781.    He  died  April  5,  17S8. 

Timothy  Woodbridge,  appointed  Associate  in  1761, 
was  born  in  1707,  and  was  a  schoolmaster  among  the 
Indians,  and  Agent  and  Superintendent  of  Indian  af- 
fairs. He  was  appointed  one  of  the  mandamus  Coun- 
sellors, but  refused  to  accept.  He  remained  on  the 
bench  until  his  death,  at  his  home  in  Stockbridge, 
May  16,  1774. 

John  Ashley,  appointed  Associate  in  1765,  and  re- 
commissioned  in  1769,  was  the  son  of  John  and  born  in 
Westfield  in  1710.  He  graduated  at  Yale  in  1732,  and 
was  admitted  to  the  Hampshire  County  bar  in  1732. 
He  contracted  with  the  Indians  in  1734  for  the  pur- 
chase of  the  south  part  of  what  is  now  Berkshire  County 
for  £460,  three  barrels  of  cider  and  thirty  quarts  of  rum, 
and  subsequently  for  a  strip  of  land,  two  miles  wide  and 
twenty-six  miles  long,  from  Westfield  to  the  Housatonic. 
He  removed  to  Sheffield  before  his  appointment  to  the 
bench.    He  died  September  1,  1803. 

Perez  Marsh  graduated  at  Harvard  in  1748,  and  was 
one  of  the  early  settlers  of  the  town  of  Dalton.  He 
was  a  physician  and  was  appointed  Associate  in  1765, 
holding  his  seat  on  the  bench  until  the  Kevolution. 

John  Bacon,  appointed  Associate  in  1769,  was  born 
in  Canterbury,  Conn.,  in  1737,  and  graduated  at  Prince- 
ton in  1765.  He  studied  divinity  and  preached  in  Som- 
erset County,  Maryland,  in  1768,  and  was  settled  over 
the  Old  South  Church  in  Boston,  September  25,  1771. 
In  1775  he  removed  to  Stockbridge,  and  was  a  Kepre- 
sentative,  member  of  the  Senate,  and  its  President  in 
1806-7,  and  a  member  of  Congress  from  1801  to  1803. 


OF  MASSACHUSETTS. 


115 


On  the  16th  of  February,  1779,  he  wps  appointed  Judge 
of  the  Berkshire  Court  of  Common  Pleas,  and  died  in 
Stockbridge  October  25,  1829. 

Jahleel  AVood bridge,  son  of  Joseph  of  Princeton,  grad- 
uated at  Princeton  in  1761,  and  settled  in  Stockbridge. 
He  was  a  Representative,  and  died  in  1796. 

William  Whiting,  appointed  Associate  in  1769,  and 
recommissioned  in  1779,  was  son  of  William  Whiting, 
and  was  born  in  Bozrah,  Conn.,  April  8, 1730.  He  set- 
tled as  a  physician  in  Great  Barrington,  and  died  De- 
cember 8, 1792. 

The  Judges  of  the  Inferior  Court  of  Common  Pleas 
for  Bristol  County  under  the  Province  charter  were  as 
follows : 

John  Saffin,  appointed  December  7,  1692;  Thomas 
Leonard,  appointed  December  7,  1692 ;  Nicholas  Peck, 
appointed  December  7,  1692  ;  John  Browne,  appointed 
December  7,  1692 ;  Nathaniel  By  field,  appointed 
August  7,  1701 ;  Ebenezer  Brenton,  appointed  June  29, 
1702  ;  Benjamin  Church,  appointed  September  30, 1708; 
Henry  Mackintosh,  appointed  December  28, 1709  ;  Xa- 
thaniel  Payne,  appointed  August  21,  1710;  Simon 
Davis,  appointed  January  1,1713-11;  George  Leonard, 
appointed  December  10,  1715  ;  Nathaniel  Blagrove,  ap- 
pointed March  19,1723-4;  Seth  Williams,  appointed 
June  23,  1721;  Samuel  Vyall,  appointed  December  2, 
1721;  George  Leonard,  2d,  appointed  December  18, 
1725;  Nathaniel  Hubbard,  appointed  June  IS,  1728; 
Thomas  Church,  appointed  August  22,  1729;  Job 
Almy,  appointed  December  11,  1710;  Stephen  Paine, 
appointed  February  8,  1715-6;  Ephraim  Leonard,  ap- 
pointed June  27,  1747;  Samuel  Willis,  appointed  April 
IS,  1710;  Timothy  Fales,  appointed  May  23,  1760; 
James  Williams,  appointed  May  23,  1760;  Zephaniah 
Leonard,  appointed  January  21,  1761;  Elisha  Tobey, 


116 


JUDICIAL  HISTORY 


appointed  June  18,  1766;  "William  Spconer,  appointed 
June  18,  1781;  Thomas  Durfee,  appointed  June  18, 
1781  ;  Benjamin  Williams,  appointed  June  18,  1781 ; 
William  Baylies,  appointed  June  18, 1781 ;  David  Cobb, 
appointed  June  18,  1781 ;  George  Leonard,  appointed 
June  18,  1781. 

The  special  justices  appointed  at  various  times  were 
Job  Almy,  appointed  January  9,  1735-6 ;  Perez  Brad- 
ford, appointed  December  11,  1740;  Nathaniel  Hub- 
bard, appointed  April  5, 1745 ;  Thomas  Terry,  appointed 
June  27, 1747 ;  Samuel  Willis,  appointed  June  27, 1747  ; 
Thomas  Bowen,  appointed  August  12, 1749  ;  John  God- 
frey, appointed  August  12,  1749 ;  Samuel  AVillis,  ap- 
pointed January  24,  1761  ;  Samuel  Willis,  appointed 
November  24, 1761 ;  Thomas  Gilbert,  appointed  Febru- 
ary 17,  1763;  Thomas  Durfee,  appointed  1775;  George 
Godfrey,  appointed  1775 ;  Thomas  Durfee,  appointed 
1777;  David  Cobb,  appointed  1781;  Ezra  Richmond, 
appointed  1781 ;  Shubael  Peck,  appointed  1781  ;  Sam- 
uel Tobey,  appointed  1781 ;  Appollos  Leonard,  ap- 
pointed 1781. 

John  Saffin,  appointed  Judge  of  Inferior  Court  of 
Bristol  County,  December  7,  1692,  was  born  in  Eng- 
land, and  coming  to  Massachusetts  about  1650,  first  set- 
tled in  Scituate.  He  afterwards  removed  to  Boston 
and  was  Speaker  of  the  House  of  Representatives  in 
1686.  In  1688  he  removed  to  Bristol,  then  the  shire 
of  Bristol  County,  but  now  in  Rhode  Island,  and  very 
shortly  after  was  appointed  Judge  of  Probate  for  Bris- 
tol County,  holding  that  office  until  1702.  He  left  the 
bench  and  in  1701  was  appointed  Judge  of  the  Superior 
Court  of  Judicature,  and  held  that  office  one  year.  He 
married  three  times,  first,  1668,  Martha,  daughter  of 
Thomas  Willet ;  second,  1680,  Elizabeth,  daughter  of 


OF  MASSACHUSETTS. 


117 


Peter  Lidget,  and  third,  Rebecca,  daughter  of  Samuel 
Lee,  of  Bristol.    He  died  in  Bristol,  July  29,  1710. 

Thomas  Leonard,  appointed  Judge,  December  7, 1692, 
and  recommissioned  in  1702,  was  son  of  James,  and 
was  born  in  Wales,  and  coming  to  New  England  with 
his  father  engaged  in  the  business  of  iron  manufacture. 
He  was  also  a  physician  and  military  officer.  He  re- 
mained on  the  bench  until  his  death  in  1713. 

Nicholas  Peck  was  of  Rehoboth,  and  was  appointed 
Judge,  December  7,  1692,  and  held  office  until  1702. 
He  died  May  27,  1710. 

John  Browne,  appointed  Judge  of  the  Inferior  Court 
December  7,  1692,  had  previously  served  under  Andros 
as  Judge  and  also  in  1689  after  the  accession  of  William 
and  Mary.    He  remained  on  the  bench  until  1709. 

Nathaniel  Byfield,  appointed  Judge  August  7,  1701, 
has  been  already  noticed  as  Judge  of  the  Admiralty 
Court. 

Ebenezer  Brenton,  appointed  Judge  June  29,  1702, 
held  office  until  1708  and  was  also  Register  of  Probate 
for  Bristol  County  from  1715  to  1721. 

Benjamin  Church,  appointed  Judge  September  30, 
170S,  was  son  of  Richard  and  Elizabeth  (Warren) 
Church  and  was  born  in  Duxbury,  Mass.,  in  1639.  He 
removed  in  1671  to  Little  Compton,  then  in  Bristol 
County  and  afterwards  to  Bristol  and  finally  to  Fall 
River.  He  represented  Bristol  in  the  Plymouth  Col- 
ony General  Court,  and  as  a  soldier  gained  distinction 
in  King  Philip's  war.  He  held  office  as  Judge  under 
Andros.  He  remained  on  the  bench  of  the  In- 
ferior Court  until  1715  and  died  January  17,  1717-18. 

Henry  Mackintosh,  appointed  Judge  December  28, 
1709,  remained  on  the  bench  until  1725,  when  he  was 
succeeded  by  George  Leonard. 

Nathaniel  Payne,  appointed  Judge  August  21,  1710, 


118 


JUDICIAL  HISTORY 


Avas  a  Swansea  man,  but  he  removed  to  Bristol.  He 
held  also  the  office  of  Judge  of  Probate  from  1710  to 
1715.  He  succeeded  Nathaniel  Byfield  on  the  bench  of 
the  Inferior  Court  and  held  office  until  1729,  a  part  of 
the  time  as  Chief  Justice. 

Simon  Davis,  appointed  Judge  in  1713-14  to  succeed 
Thomas  Leonard,  remained  on  the  bench  until  1715. 

George  Leonard,  of  Norton,  appointed  Judge  De- 
cember 10,  1715,  was  son  of  Judge  Thomas  Leonard, 
and  sat  on  the  bench  until  his  death,  September  5, 1716. 

Nathaniel  Blagrove,  appointed  Judge  March  19,1723- 
4,  served  only  one  year.  He  was  Judge  of  Probate  of 
Bristol  County  from  1733  to  1747. 

Seth  Williams,  of  Taunton,  appointed  Judge  June 
23,  1724,  was  born  in  1676.  He  was  Eepresentative 
nine  years  and  a  member  of  the  Council  eleven  years. 
After  serving  as  Chief  Justice  thirty-six  years  he  re- 
signed in  1760  and  died  in  Taunton,  May  13,  1761. 

Samuel  Vyall,  appointed  Judge  December  2,  1724, 
served  until  1728,  when  he  was  succeeded  by  Nathaniel 
Hubbard. 

George  Leonard,  2d,  appointed  Judge  December  18, 
1725,  was  son  of  Judge  George  Leonard,  and  remained 
on  the  bench  until  1740,  and  was  reappointed  in  1746, 
continuing  in  office  until  the  Revolution.  He  was  also 
Judge  of  Probate  from  1747  to  1761. 

Nathaniel  Hubbard,  appointed  Judge  in  1728,  has  been 
already  noticed  as  Judge  of  the  Superior  Court  of  Judi- 
cature. 

Thomas  Church,  appointed  August  22,  1729,  was  son 
of  Benjamin  and  Alice  (Southworth)  Church  and  was 
born  in  Little  Compton,  then  a  part  of  the  Plymouth 
Colony,  in  1674.  He  wTas  also  a  Representative  and 
remained  on  the  bench  until  1745.    He  died  in  1746. 

Job  Almy  of  Tiverton,  then  in  Massachusetts,  ap- 


OF  MASSACHUSETTS. 


119 


pointed  December  11,  1710,  remained,  on  the  bench  un- 
til 1717. 

Stephen  Paine  of  Bristol,  then  in  Massachusetts,  ap- 
pointed February  8,  1745-6,  graduated  at  Harvard  in 
1721,  and  was  a  Representative  from  Bristol.  He  re- 
mained on  the  bench  until  1719,  and  was  also  Register 
of  Probate  from  1729  to  1719. 

Ephraim  Leonard,  appointed  June  27, 1717,  was  son  of 
George  Leonard  of  Norton  and  remained  on  the  bench 
until  the  Revolution. 

Samuel  Willis  of  Dartmouth,  appointed  April  18, 1719, 
was  born  in  Dartmouth.  He  remained  on  the  bench 
until  1760  and  died  October  3,  1763. 

Timothy  Fales,  appointed  May  23, 1760,  graduated  at 
Harvard  in  1711.  He  served  on  the  bench  one  year  and 
died  in  1777. 

James  Williams  of  Taunton,  appointed  Judge  May  23, 
1760,  served  until  the  Revolution.  On  the  reorganiza- 
tion of  the  Court  he  was  made  Chief  Justice  and  died 
in  17S0. 

Zephaniah  Leonard  of  Ra}Tnham,  appointed  Janu- 
ary 21,  1761,  received  an  honorary  degree  of  Master  of 
Arts  from  Harvard  in  1763,  and  served  until  the  Revo- 
lution.   He  died  in  1814. 

Elisha  Tobey,  appointed  Judge  June  18,  1766,  grad- 
uated at  Harvard  in  1713.  He  served  on  the  bench 
until  the  Revolution. 

William  Spooner,  appointed  in  1781,  was  probably  of 
New  Bedford. 

Thomas  Durfee,  appointed  in  1781,  was  probably  of 
Little  Compton. 

Of  Benjamin  Williams,  appointed  in  1781,  the  writer 
knows  nothing. 

William  Baylies,  appointed  in  1781,  was  probably  Dr. 
William  Baylies  of  Dighton  who  graduated  from  Har 


120 


JUDICIAL  HISTORY 


vard  in  1760  and  was  the  father  of  Hon.  ¥m.  Baylies, 
an  eminent  lawyer  of  Plymouth  County  and  member 
of  Congress,  and  Hon.  Francis  Baylies  of  Taunton,  the 
author  of  a  history  of  the  Old  Colony. 

David  Cobb  of  Taunton,  appointed  in  1781,  was  also 
a  distinguished  military  officer.  He  defeated  the  at- 
tempts of  the  insurgents  in  Shays'  Rebellion  to  prevent 
the  session  of  the  Court  of  which  he  was  the  presiding 
Judge,  declaring  that  he  would  either  sit  as  Judge  or  die 
as  General. 

George  Leonard,  appointed  in  1781,  was  the  son  of 
George  Leonard,  2d,  and  grandson  of  George  Leonard, 
both  of  whom  preceded  him  on  the  Common  Pleas 
bench. 

The  county  of  Dukes  County  was  incorporated  June 
22,  1695.  The  act  of  incorporation  provided  "  that  the 
Islands  of  Martha's  Vineyard,  Elizabeth  Islands,  the 
island  called  Roman's  Land,  and  all  the  dependencies 
formerly  belonging  to  Dukes  County  (the  Island  of 
Nantucket  only  excepted)  shall  be,  remain  and  con- 
tinue to  be,  one  county  to  all  intents  and  purposes,  by 
the  name  of  Dukes  County ;  and  all  appeals  from  any 
judgment  or  judgments  given,  or  to  be  given,  in  any  of 
the  Inferior  Courts  of  Common  Pleas  within  the  said 
County  shall  henceforth  be  heard  and  tried  at  the 
Superior  Court  of  Judicature,  to  be  holden  from  time 
to  time  at  Plymouth,  within  the  neighboring  County  of 
Plymouth,  any  law,  usage  or  custom  to  the  contrary 
notwithstanding ;  the  jurors  to  serve  at  said  Superior 
Court  of  Judicature  to  be  from  time  to  time  chosen 
and  summoned  out  of  the  several  towns  within  the  said 
County  of  Plymouth,  and  Dukes  County,  according  to 
the  direction  in  the  law  in  such  case  provided." 

The  Judges  of  the  Inferior  Court  of  Common  Pleas 
for  Dukes  County  were  as  follows: 


OF  MASSACHUSETTS. 


121 


Matthew  Mayhew,  appointed  December  %  1692; 
Thomas  Mayhew,  appointed  December  7, 1692  ;  Richard 
Sarson,  appointed  December  7, 1692;  James  AHyn,  ap- 
pointed December  7,  1692 ;  John  Coffin,  appointed  Oc- 
tober 16, 1696  ;  Benjamin  Skiff e,  appointed  September  6, 
1699  ;  Joseph  Norton,  appointed  June  29,  1702  ;  Paine 
Mayhew,  appointed  October  27,  1713 ;  Ebenezer  Allen, 
appointed  December  10,  1715 ;  Zacheus  Mayhew,  ap- 
pointed April  16,  1718 ;  John  Chipman,  appointed 
June  29,  1722;  Euoch  Coffin,  appointed  January  24, 
1727-8  ;  John  Allen,  appointed  May  4,  1733 ;  Samuel 
Norton,  appointed  May  4, 1733 ;  John  Sumner,  appointed 
April  15, 1748  ;  Ebenezer  Smith,  appointed  January  24, 
1761;  John  Newman,  appointed  October  16,  1761; 
Matthew  Mayhew,  2d,  appointed  January  21, 1762  ;  Jo- 
siah  Tilton,  appointed  June  8,  1764 ;  Joseph  Mayhew, 
appointed  December  10,  1771 ;  Joseph  Mayhew,  ap- 
pointed 1775 ;  James  Athearne,  appointed  1775  ;  John 
Worth,  appointed  1775  ;  Shubael  Cottle,  appointed  1775 ; 
Ebenezer  Smith,  appointed  1775. 

The  special  justices  of  the  court  were  John  Worth, 
appointed  December  24,  1730 ;  Benjamin  Smith,  ap- 
pointed December  24,  1730 ;  Joseph  Lothrop,  ap- 
pointed July  6,  1732 ;  John  Thacher,  appointed  July  6, 
1732 ;  John  Thacher,  appointed  July  7,  1732 ;  Joseph 
Lothrop,  appointed  July  7,  1732 ;  Benjamin  Smith,  ap- 
pointed February  21,  1733-4 ;  Ebenezer  Norton,  ap- 
pointed February  21, 1733-4 ;  Jabez  Athearne,  appoint- 
ed January  15,  1741-2  ;  Ebenezer  Norton,  August  26, 
1757 ;  Josiah  Tilton,  appointed  October  16,  1761 ; 
John  Worth,  appointed  December  10,  1771. 

Matthew  Mayhew,  appointed  Judge  of  the  Inferior 
Court  of  Common  Pleas  for  Dukes  County,  December  7, 
1692,  was  son  of  Thomas  Mayhew,  and  grandson  of 
Thomas  for  many  years  Governor  of  the  Vineyard,  and 


122 


JUDICIAL  HISTORY 


adjacent  islands.  He  succeeded  his  grandfather  as 
Governor  in  1681,  and  also  preached  to  the  Indians. 
He  remained  on  the  bench  until  1700  and  was  also 
Judge  of  Probate  from  1696  to  1710  the  year  he  died. 

Thomas  Mayhew,  appointed  Judge  December  7, 
1692,  was  brother  of  Matthew,  and  continued  on  the 
bench  until  his  death,  July  21,  1715. 

Kichard  Sarson,  appointed  Judge  December  7,  1692, 
held  office  until  1700. 

John  Allyn,  or  Allen,  appointed  Judge  December  7, 
1692,  may  be  the  person  of  that  name  who  graduated 
at  Harvard  in  1689.  He  sat  on  the  bench  until  his 
death,  July  25,  1714,  at  the  age  of  seventy-seven. 

John  Coffin,  appointed  Judge  October  16, 1696,  served 
until  1702,  and  died  September  5,  1711. 

Benjamin  Skiffe,  appointed  Judge  September  6, 1699, 
was  also  Judge  of  Probate  from  1715  to  1718.  He  sat 
on  the  bench  until  his  death,  February  18,  1718. 

Joseph  Norton,  appointed  Judge  June  29,  1702,  sat 
on  the  bench  until  1722,  and  died  January  30,  1741. 

Paine  Mayhew,  appointed  Judge  October  27,  1713, 
was  also  Judge  of  Probate  from  1718  to  1733.  He  sat 
on  the  bench  until  about  1730,  and  died  May  8,  1761. 

Ebenezer  Allen,  appointed  Judge  December  10, 1715, 
was  son  of  James  Allen,  and  was  also  sheriff  in  1701-2. 
He  died  May  14,  1733. 

Zacheus  Mayhew,  appointed  Judge  April  16,  1718, 
sat  on  the  bench  until  1760.  He  was  also  Judge  of 
Probate  from  1733  to  1760.  He  died  January  3,  1760, 
at  the  age  of  seventy-five. 

John  Chipman,  appointed  Judge  June  29, 1722,  grad- 
uated at  Harvard  in  1711.    He  died  in  1775. 

Enoch  Coffin,  appointed  Judge  January  24,  1727-8, 
was  of  Edgartown,  and  graduated  at  Harvard  in  1714. 
He  served  on  the  bench  until  his  death  in  1761. 


OF  MASSACHUSETTS. 


123 


John  Allen,  appointed  Judge  May  4,  1733,  sat  on  the 
bench  until  1761.  He  was  also  sheriff  from  1715  to 
1733.    He  died  October  17,  1767. 

Samuel  Norton,  appointed  Judge  May  4, 1733,  served 
until  1748,  and  died  September  5, 1760. 

John  Sumner,  appointed  Judge  April  15,  1748,  grad- 
uated at  Harvard  in  1723.  He  sat  on  the  bench  until 
the  Kevolution  and  died  in  1787. 

Ebenezer  Smith,  appointed  Judge  January  24,  1761, 
served  until  about  1770,  and  died  October  15,  1771,  at 
the  age  of  seventy-one. 

John  Newman,  appointed  Judge  October  16,  1761, 
graduated  at  Harvard  in  1740  and  studied  divinity. 
He  sat  on  the  bench  two  years  and  died  December  1, 
1763. 

Matthew  Mayhew,  2d,  probably  a  grandson  of  Judge 
Matthew,  above  mentioned,  was  appointed  Judge  Jan- 
uary 21, 1762,  and  served  until  the  Revolution,  and  was 
Chief  Justice  of  the  Court.  He  was  also  Judge  of  Pro- 
bate from  1760  to  the  Revolution. 

Josiah  Tilton,  appointed  Judge  June  8,  1764,  served 
until  the  Revolution. 

The  Judges  of  the  Inferior  Court  of  Common  Pleas 
for  Essex  County  under  the  Province  charter  were  as 
follows : 

Bartholomew  Gedney,  appointed  December  7,  1692 ; 
John  Hathorne,  appointed  December  7,  1692;  Samuel 
Appleton,  appointed  December  7, 1692 ;  Jonathan  Cor- 
win,  appointed  December  7, 1692  ;  William  Browne,  ap- 
pointed June  4, 1696  ;  Daniel  Pierce,  appointed  June  3, 
1698 ;  Nathaniel  Saltonstall,  appointed  June  30,  1702 ; 
Jonathan  Corwin,  reappointed  October  23, 1702  ;  John 
Appleton,  appointed  June  14,  1702  ;  Thomas  JSToyes, 
appointed  June  10,  1707 ;  John  Higginson,  appointed 
June  15, 1708;  Samuel  Browne,  appointed  December  9, 


124 


JUDICIAL  HISTORY 


1715:  John  Burrill,  appointed  July  15,  1720;  Josiali 
Wolcott,  appointed  March  9, 1721-2  ;  Timothy  Lindall, 
appointed  April  10, 1729  ;  Theophilus  Burrill,  appointed 
June  21, 1733  ;  Thomas  Berry,  appointed  June  21, 1733  ; 
Benjamin  Marston,  appointed  November  10, 1737 ;  Ben- 
jamin Lynde,  Jr.,  appointed  October  5,  1739;  John 
Choat,  appointed  February  8,  1745-6  ;  Henry  Gibbs, 
appointed  June  25,  1754;  John  Tasker,  appointed 
April  20, 1754;  Benjamin  Pickman,  appointed  Septem- 
ber 14, 1756  ;  Caleb  Cushing,  appointed  March  8, 1759  ; 
Stephen  Higginson,  appointed  June  24, 1761 ;  Nathaniel 
Hopes,  appointed  November  19,  1761 ;  Andrew  Oliver, 
appointed  November  19,  1761 ;  William  Bourne,  ap- 
pointed February  5,  1766;  William  Browne,  appointed 
September  17, 1770  ;  Peter  Frye,  appointed  January  15, 
1772  ;  John  Lowell,  appointed  October  28, 1775  ;  Caleb 
Cushing,  appointed  October  28, 1775  ;  Benjamin  Green- 
leaf,  appointed  October  28. 1775  ;  Azor  Orne,  appointed 
October  28, 1775  ;  Timothy  Pickering,  appointed  1779  ; 
Samuel  Holton,  appointed  1779  ;  Caleb  Cushing,  ap- 
pointed 1779;  Benjamin  Greenleaf,  appointed  1779; 
Benjamin  Greenleaf,  appointed  September  20,  1881 ; 
Samuel  Holton,  appointed  September  20, 1S81 ;  Samuel 
Phillips,  appointed  September  20,  1881. 

The  following  Special  Justices  of  the  Inferior  Court 
of  Common  Pleas  were  appointed  at  various  times  : 

Samuel  Appleton,  appointed  October  20, 1711 ;  John 
Burrill,  appointed  October  26, 1711 ;  Samuel  Appleton, 
appointed  September  16,  1715  ;  John  Burrill,  appointed 
September  16, 1715  ;  John  Wainwright,  appointed  Sep- 
tember 30, 1725 ;  Theophilus  Burrill,  appointed  Septem- 
ber 30,  1725  ;  Theophilus  Burrill,  appointed  April  11, 
1729  ;  William  Gedney,  appointed  April  11,  1729  ;  The- 
ophilus Burrill,  appointed  August  25,  1731 ;  Kichard 
Kent,  appointed  August  25,  1731 ;  Nathaniel  Coffin,  ap- 


OF  MASSACHUSETTS. 


125 


pointed  June  28, 1734 ;  Benjamin  Lynde,  Jr.,  appointed 
June  28,  1734;  Epes  Sargeant,  appointed  July  5, 1740; 
David  Appleton,  appointed  July  5,  1740 ;  David  Ap- 
pleton,  appointed  August  18,  1744;  Epes  Sargeant, 
appointed  August  18, 1744 ;  John  Choat,  appointed  Jan- 
uary 19,  1744-5  ;  John  Greenleaf,  appointed  March  28, 
1755;  Epes  Sargeant,  appointed  March  11,  1762; 
Daniel  Appleton,  appointed  March  11,  1762;  Jacob 
Fowle,  appointed  February  17,  1763  ;  Samuel  Kogers, 
appointed  February  17,  1763;  William  Browne,  ap- 
pointed February  5,  1766. 

Bartholomew  Gedney,  appointed  Judge  of  the  Infe- 
rior Court  of  Common  Pleas  December  7,  1692,  has  al- 
ready been  noticed  in  connection  with  the  Court  of 
Oyer  and  Terminer  organized  to  try  the  witchcraft 
cases. 

John  Hathorne,  or  Hawthorne,  appointed  Judge  De- 
cember 7,  1692,  was  son  of  William,  and  born  in  Salem 
about  1641.  He  was  Assistant  from  16S4  to  1686  and 
was  appointed  in  1702  Judge  of  the  Superior  Court  of 
Judicature,  holding  that  office  until  1712.  He  died  in 
Boston  May  10,  1717. 

Samuel  Appleton,  appointed  December  7,  1692,  was 
born  in  England  in  1625  and  came  to  Massachusetts  in 
1635.  He  was  a  Representative,  and  a  member  of  the 
Council  from  1681  to  1686.  He  sat  on  the  bench  until 
his  death,  May  15,  1696. 

Jonathan  Corwin,  appointed  December  7,  1692,  and 
reappointed  October  23,  1702,  has  been  noticed  as  a 
Judge  of  the  Superior  Court  of  Judicature. 

Daniel  Pierce  of  Newbury,  appointed  Judge  June  3, 
1698,  was  a  Representative  in  the  General  Court  and  a 
Colonel  in  the  Militia.  He  was  a  member  of  the  Com- 
mittee of  Safety  appointed  in  1689  and  sat  on  the  bench 
until  his  death  January  22,  1704. 


126 


JUDICIAL  HISTORY 


"William  Browne,  appointed  Judge  June  4,  1696,  was 
son  of  William  of  Salem  and  born  in  1639.  He  was  a 
Representative  and  member  of  the  Council  and  died 
February  14,  1716. 

Nathaniel  Saltonstall,  appointed  Judge  June  30, 1702, 
was  son  of  Richard  and  Muriel  Saltonstall,  and  was  born 
in  Ipswich  in  1639.  He  was  an  Assistant  from  1679  to 
1686,  and  in  1692  declined  an  appointment  as  Judge  of 
the  Court  of  Oyer  and  Terminer  organized  to  try  the 
witchcraft  cases.  He  was  named  in  the  Province  Char- 
ter as  one  of  the  Council  and  continued  a  member  until 
1694.  He  graduated  at  Harvard  in  1659  and  settled  in 
Haverhill.  He  remained  on  the  bench  until  his  death, 
May  21,  1707. 

John  Appleton,  appointed  June  14, 1704,  was  a  nephew 
of  Judge  Samuel  Appleton  noticed  above,  and  son  of 
John.  He  sat  on  the  bench  until  1733  when  he  re- 
signed. 

Thomas  Noyes,  appointed  June  10, 1707,  was  of  New- 
bury. He  was  a  Representative  and  member  of  the 
Council.  He  remained  on  the  bench  until  April  10, 
1729,  and  died  April  12,  1730. 

John  Higginson,  appointed  June  15, 1708,  was  son  of 
Rev.  John  Higginson  of  Salem,  and  was  born  in  that 
city  in  1647.  He  was  a  merchant  and  member  of  the 
Council.  He  remained  on  the  bench  until  his  death 
March  23,  1719-20. 

Samuel  Browne,  appointed  December  9, 1715,  was  son 
of  Judge  William  Browne,  noticed  above,  and  was  born 
in  Salem  October  8,  1669.  He  was  a  Representative, 
member  of  the  Council  and  a  Militia  Colonel.  He  sat 
on  the  bench,  a  part  of  the  time  as  Chief  Justice,  until 
his  death  June  16,  1731. 

John  Burrill,  appointed  July  15,  1720,  was  born  in 
Lynn  in  October,  1658.   He  was  a  member  of  the  Coun- 


OF  MASSACHUSETTS. 


127 


cil  and  Speaker  of  the  House  of  Representatives  and 
remained  on  the  bench  until  his  death,  December  10, 
1721. 

Josiah  Wolcott,  appointed  March  9,  1721-2  was. a 
merchant  of  Salem  and  at  one  time  a  Representative. 
He  remained  on  the  bench  until  his  death,  February  2, 
1728-9. 

Timothy  Lindall,  appointed  April  10,  1729,  was  born 
in  Salem  November  4, 1677,  and  graduated  at  Harvard 
in  1695.  He  was  a  Representative  and  member  of  the 
Council.  He  remained  on  the  bench  until  his  resigna- 
tion in  1754,  and  died  October  25,  1760. 

John  Wainwright,  appointed  April  10, 1729,  was  born 
in  Ipswich,  Mass.,  in  1691,  and  graduated  at  Harvard 
in  1709.  He  was  a  merchant,  a  Representative,  Clerk 
of  the  House  of  Representatives  and  Colonel  in  the 
Militia.  He  remained  on  the  bench  until  his  death 
September  1,  1739. 

Theophilus  Burrill,  appointed  June  21,  1733,  was 
born  in  Lynn  May  21,  1709,  and  served  until  his  death 
in  1737. 

Thomas  Berry,  appointed  June  21,  1733,  was  born  in 
Boston  and  graduated  at  Harvard  in  1712.  His  family 
removed  to  Ipswich  and  after  graduation  he  settled  as 
a  physician  in  that  town.  He  was  a  Representative, 
member  of  the  Council,  and  was  Judge  of  Probate  of 
Essex  County  from  October  5,  1739,  to  August  10, 1756. 
He  remained  on  the  bench  until  his  death  August  10, 
1756. 

Benjamin  Marston,  appointed  November  10,  1737, 
was  born  in  Salem  about  1670  and  graduated  at  Harvard 
in  1689.  He  was  a  joint  Sheriff  of  Essex  County  with 
John  Denison  from  July  3, 1722,  to  December  12,  1728, 
and  sole  Sheriff  from  the  latter  date  to  January  24, 
1745-6.    He  remained  on  the  bench  until  1754.  He 


128 


JUDICIAL  HISTORY 


married  Elizabeth,  daughter  of  Isaac  and  Sarah  (Wens- 
ley)  Winslow  and  died  in  Manchester,  Mass.,  in  1754. 

Benjamin  Lynde,  Jr.,  appointed  October  5,  1739,  has 
been  already  noticed  as  a  Judge  of  the  Superior  Court 
of  Judicature. 

John  Choat  or  Choate,  appointed  February  8, 1745-6, 
was  of  Ipswich.  He  was  a  Representative,  member  of 
the  Council,  and  was  Judge  of  Probate  of  Essex  County 
from  September  14,  1756,  to  February  5,  1766.  He  sat 
on  the  bench  until  his  death  in  1766. 

Henry  G-ibbs,  appointed  June  25,  1754,  was  born  in 
Watertown,  Mass.,  in  May,  1709,  and  graduated  at 
Harvard  in  1726.  He  was  a  merchant  in  Salem,  Rep- 
resentative and  Clerk  of  the  House.  He  remained  on 
the  bench  until  his  death  in  February,  1759. 

John  Tasker,  appointed  April  20,  1754,  belonged  to 
Marblehead  and  was  at  one  time  Representative.  He 
remained  on  the  bench  until  his  death  November  9, 1761. 

Benjamin  Pickman,  appointed  September  14,  1756, 
was  born  in  Salem  in  1708.  He  was  a  merchant,  Colo- 
nel in  the  Militia,  Representative  and  member  of  the 
Council.  He  remained  on  the  bench  until  1761,  and 
died  in  Salem  August  20,  1774. 

Caleb  Cushing,  appointed  March  8,  1759,  was  a  Salis- 
bury man  and  served  on  the  bench  until  the  Revolution. 
After  the  reorganization  of  the  Court  in  1775,  he  was 
appointed  Chief  Justice. 

Stephen  Higginson,  appointed  June  24,  1761,  was 
born  in  Salem  in.  July,  1716,  and  died  on  the  12th  of 
October,  following  his  appointment. 

Nathaniel  Ropes,  appointed  November  19,  1761,  has 
been  noticed  as  Judge  of  the  Superior  Court  of  Judi- 
cature. 

Andrew  Oliver,  appointed  November  19,  1761  was 
born  in  Salem  November  13,  1731,  and  graduated  at 


0 

OF  MASSACHUSETTS.  129 

Harvard  in  1749.  He  was  son  of  Andrew  Oliver,  Lieu- 
tenant Governor  of  the  Province  from  1771  to  177-1. 
He  was  a  Eepresentative  and  declined  an  appointment 
as  Mandamus  Councillor.  He  was  a  founder  of  the 
American  Academy  of  Arts  and  Sciences  and  a  member 
of  the  Philosophical  Societ}'  of  Philadelphia.  He  re- 
mained on  the  bench  until  the  Revolution  and  died  in 
1799. 

"William  Bourne,  appointed  February  5,  1766,  was 
son  of  Sylvanus  and  Mercy  (Gorham)  Bourne  and  was 
born  in  Barnstable,  Mass.,  February  27,  1723-4.  He 
graduated  at  Harvard  in  1743.  He  served  at  the  cap- 
ture of  Louisburg  in  1757  and  settled  as  a  merchant  in 
Marblehead.  He  married  first  a  daughter  of  Lieuten- 
ant Governor  Hazard  and  second  a  daughter  of  Judge 
John  Tasker.  He  remained  on  the  bench  until  his 
death  August  12,  1770. 

William  Browne,  appointed  September  17,  1770,  has 
been  already  noticed  as  a  Judge  of  the  Superior  Court 
of  Judicature. 

Peter  Frye,  appointed  January  15,  1772,  was  born  in 
Andover  in  1723  and  graduated  at  Harvard  in  1744. 
He  removed  to  Salem  and  taught  school,  and  was  also 
Colonel  in  the  Militia  and  Register  of  Probate  for  Essex 
County  from  September  29,  1773,  to  the  Revolution. 
He  remained  on  the  bench  until  the  Revolution  and  be- 
ing a  Loyalist  went  to  England  where  he  died  in  1820. 

John  Lowell,  appointed  after  the  reorganization  of 
the  Court  in  1775,  was  born  in  Newburyport,  June  17, 
1743,  and  graduated  at  Harvard  in  1760.  He  was 
Judge  of  the  United  States  Court  of  Appeals,  Judge  of 
the  United  States  District  Court  for  Massachusetts, 
Chief  Justice  of  the  United  States  Circuit  Court  and 
Delegate  to  Continental  Congress.  He  died  in  Rox- 
bury,  May  6,  1802. 
9 


130 


JUDICIAL  HISTORY 


Benjamin  Greenleaf,  appointed  October  28, 1775,  was 
born  in  Newburyport  about  1731  and  graduated  at 
Harvard  in  1751.  He  was  recommissioned  in  1777  and 
died  in  1799. 

Azor  Orne,  appointed  October  28,  1775,  did  not  take 
his  seat. 

Timothy  Pickering  was  born  in  Salem,  July  17, 1745, 
and  graduated  at  Harvard  in  1763.  He  was  Judge  of 
the  Prize  Court  for  Suffolk,  Essex  and  Middlesex,  Colo- 
nel of  a  Eegiment  in  177G,  member  of  the  Continental 
Board  of  War  and  Quarter-Master  General.  In  1791 
was  Postmaster  General,  in  1795  Secretary  of  War  and 
Secretary  of  State.  In  1802  was  made  Judge  of  Com- 
mon Pleas,  in  1803  was  United  States  Senator,  from 
1813  to  1817  was  member  of  Congress,  and  died  in 
Salem,  January  29,  1829. 

Samuel  Holton  was  of  Danvers. 

Samuel  Phillips,  appointed  September  20,  1781,  was 
nephew  of  John  Phillips,  the  founder  of  Phillips  Acad- 
emy at  Exeter  and  son  of  Samuel  Phillips,  of  Andover. 
He  was  born  in  North  Andover,  Mass.,  February  7, 
1751,  and  graduated  at  Harvard  in  1771.  He  was  a 
member  of  Provincial  Congress  and  of  the  Constitu- 
tional Convention  of  1779,  State  Senator  twenty  j^ears, 
President  of  the  Senate  fifteen  3rears,  Commissioner  of 
the  State  in  Shays'  Eebellion  and  Lieutenant  Governor 
at  the  time  of  his  death  February  10,  1802.  He  organ- 
ized Phillips  Academy  at  Andover  and  secured  an  en- 
dowment for  it  from  his  father  who  was  a  member  of 
the  Executive  Council,  and  left  to  his  native  town  $5,000 
for  educational  purposes.  He  was  also  one  of  the  found- 
ers of  the  American  Academy  of  Arts  and  Sciences. 

The  Judges  of  the  Inferior  Court  of  Common  Pleas 
for  Hampshire  County  during  the  Provincial  period 
were  as  follows : 


OF  MASSACHUSETTS. 


131 


John  Pynchon,  appointed  December  7,  1692 ;  Peter 
Tilton,  appointed  December  7, 1692  ;  Samuel  Partridge, 
appointed  December  7, 1692 ;  Joseph  Hawley,  appointed 
December  7, 1692 ;  John  Pynchon,  appointed  October  16, 
1696 ;  Samuel  Partridge,  appointed  October  16,  1696 ; 
Joseph  Hawley,  appointed  October  16,  1696 ;  Joseph 
Parsons,  appointed  October  16,  1696 ;  John  Pynchon, 
appointed  July  17,  1699  ;  Samuel  Partridge,  appointed 
July  17, 1699  ;  Joseph  Hawley,  appointed  July  17, 1699 ; 
John  Pynchon  appointed  June  29,  1702 ;  Samuel  Par- 
tridge, appointed  Jime  29,  1702 ;  Joseph  Hawley,  ap- 
pointed June  29,  1702 ;  Joseph  Parsons,  appointed 
June  29,  1702;  John  Pynchon,  Jr.,  appointed  June  8, 
1710  ;  Samuel  Porter,  appointed  June  8,  1711 ;  Samuel 
Partridge,  appointed  December  10,  1715 ;  Joseph  Par- 
sons, appointed  December  10, 1715  ;  John  Pynchon,  2d, 
appointed  December  10, 1715  ;  Samuel  Porter,  appointed 
December  10, 1715  ;  John  Stoddard,  appointed  June  27, 
1719;  John  Pynchon,  3d,  appointed  June  29,  1722; 
John  Ashley,  appointed  January  9,  1722-3 ;  Henry 
D wight,  appointed  October  10,  1729;  John  Ashley,  ap- 
pointed October  10, 1729  ;  Samuel  Partridge,  appointed 
October  10, 1729  ;  John  Stoddard,  appointed  October  10, 
1729  ;  Samuel  Partridge,  appointed  December  28, 1732; 
John  Stoddard,  appointed  December  28,  1732 ;  John 
Pynchon,  3d,  appointed  December  28, 1732  ;  John  Ash- 
ley, appointed  December  28,  1732 ;  Ebenezer  Pomeroy, 
appointed  1735  ;  Eleazer  Porter,  appointed  July  2, 1737 ; 
Timothy  D wight,  appointed  July  2,  1737;  William 
Pynchon,  Jr.,  appointed  July  2,  1737;  William  Pyn- 
chon, Sr.,  appointed  July  8, 1738  ;  Joseph  Pynchon,  ap- 
pointed April  2,  1741 ;  Ephraim  Williams,  appointed 
July  21, 1741 ;  Timothy  D wight,  appointed  November  8, 
1748  ;  Josiah  Dwight,  appointed  January  18,  1749-50  ; 
Joseph  Dwight,  appointed  January  4,  1753 ;  Joseph 


132 


JUDICIAL  HISTORY 


D wight,  appointed  January  11,  1758  ;  Israel  Williams, 
appointed  January  11,  1758;  Josiah  D wight,  appointed 
January  11,  1758;  Timothy  Dwight,  Jr.,  appointed 
January  11,  1758;  Elijah  Williams,  appointed  June  24, 
1761;  Thomas  Williams,  appointed  February  1,  1761; 
Israel  Williams,  appointed  October  26,  1768;  Oliver 
Partridge,  appointed  October  26,  1768;  Timothy 
Dwight,  Jr.,  appointed  October  26,  1768;  Thomas 
Williams,  appointed  October  26,  1768 ;  Timothy  Dan- 
ielson,  appointed  December  1,  1777 ;  Eleazer  Porter, 
appointed  December  1,  1777 ;  John  Bliss,  appointed 
December  1,  1777 ;  Samuel  Mather,  appointed  Janu- 
ary 16,  1778. 

The  Special  Justices  appointed  at  various  times  were 
as  follows : 

Luke  Hitchcock,  appointed  July  14,  1721 ;  Eleazer 
Porter,  appointed  December  26,  1727 ;  Thomas  Hast- 
ings, appointed  December  26, 1727 ;  William  Pynchon, 
Jr.,  appointed  August  19,  1738;  Israel  Williams,  ap- 
pointed August  19, 1738  ;  Elijah  Williams,  appointed 
September  13,  1753;  Samuel  Mather,  appointed  Febru- 
ary 4,  1762;  Thomas  Williams,  appointed  February  4, 
1762;  Eleazer  Porter,  appointed  June  8,  1764. 

John  P}mchon,  appointed  Judge  of  the  Inferior 
Court  of  Common  Pleas,  December  7, 1692,  and  recom- 
missioned  October  16, 1696,  July  17, 1699,  and  June  29, 
1702,  was  son  of  William  Pynchon,  who  removed  with 
his  family  from  Roxbury  to  Springfield  in  1636.  He 
was  born  in  England  in  1625  and  was  Chief  Justice  of 
the  Court,  and  died  January  17,  1703. 

Peter  Tilton,  appointed  December  7,  1692,  was  of 
Hadley,  and  was  an  Assistant  and  Representative 
under  the  Colony  Charter.  He  remained  on  the  bench 
until  1694  and  died  in  1696. 

Samuel  Partridge,  appointed  December  7,  1692,  and 


OF  MASSACHUSETTS. 


133 


recommissionecl  October  16, 1696,  July  17, 1699,  June  29, 
1702,  December  10, 1715,  October  10, 1729  and  Decem- 
ber 28,  1732,  was  born  in  Hartford,  Conn.,  October  15, 
1645.  He  was  by  profession  a  lawyer,  and  was  a  Clerk 
in  the  Colonial  Court.  He  remained  on  the  bench  until 
his  death,  December  25,  1740. 

Joseph  Hawley,  appointed  December  7, 1692,  and  re- 
commissioned  October  16,  1696,  July  17,  1699,  and 
June  29, 1702,  was  of  Northampton,  and  held  office  until 
his  death  in  1711.    He  graduated  at  Harvard  in  1674. 

Joseph  Parsons,  appointed  October  16,  1696,  and  re- 
commissioned  July  17,  1699,  July  29,  1702  and  De- 
cember 10,  1715,  was  son  of  Joseph  and  Mary  (Bliss) 
Parsons,  and  was  born  in  Springfield,  Mass.,  November  1, 
1647.  He  was  a  lawyer,  and  served  fourteen  years  as 
Representative  from  Northampton  and  two  years  from 
Springfield.  In  1696  he  was  appointed  Judge  of  the 
Court  of  Oyer  and  Terminer  at  Northampton  for  the 
trial  of  certain  Hudson  River  Indians  for  the  murder  of 
Richard  Church,  and  again  in  1718  one  of  the  Judges  of 
the  Court  at  Northampton  for  the  trial  of  Ovid  Ruch- 
brock,  charged  with  counterfeiting  the  bills  of  credit  of 
Massachusetts.  He  married  in  March,  1669,  Elizabeth, 
daughter  of  Elder  John  and  Abigail  (Ford)  Strong,  and 
died  at  Springfield  November  29,  1729. 

Samuel  Porter,  appointed  June  8,  1711,  and  recom- 
missioned  December  10,  1715,  was  of  Hadley,  and  died 
in  1722. 

John  Pynchon,  2d,  appointed  Judge  June  8,  1710, 
and  recommissioned  December  10,  1715,  was  son  of 
Judge  John  Pynchon  noticed  above,  and  was  born  in 
Springfield,  October  17,  1647.  He  was  Clerk  of  the 
Courts  and  Register  of  Deeds,  and  sat  on  the  bench 
until  his  death,  April  25,  1721. 

John  Stoddard,  appointed  June  27, 1719,  and  recom- 


134 


JUDICIAL  HISTORY 


missioned  October  10,  1729,  and  July  2, 1737,  was  born 
in  Northampton  and  graduated  at  Harvard  in  1701. 
In  1713  he  was  sent  to  Quebec  to  redeem  the  captives 
in  the  French  and  Indian  wars,  and  in  1736  declined  a 
seat  on  the  bench  of  the  Superior  Court  of  Judicature, 
and  was  Judge  of  Probate  for  Hampshire  County.  In 
1738  he  was  made  Chief  Justice  of  the  Inferior  Court, 
and  died  June  19,  1718. 

John  Pynchon,  3d,  son  of  John,  2d,  above  noticed,  was 
of  Springfield,  and  was  appointed  June  22,  1722,  and 
recommissioned  December  28,  1732. 

Henry  Dwight,  appointed  January  9,  1722-3,  and  re- 
commissioned  October  10,  1729,  was  a  practising  attor- 
ney in  Hatfield.    He  served  until  1731  and  died  in  1733. 

John  Ashley,  appointed  January  9,  1722-3,  and  re- 
commissioned  October  10, 1729  and  December  28, 1732, 
has  been  already  noticed  as  Judge  of  the  Inferior  Court 
of  Common  Pleas  for  Berkshire  County. 

Ebenezer  Pomeroy,  appointed  February  21,  1734-5, 
was  of  Northampton,  and  sat  on  the  bench  until  1753. 
He  died  in  1754. 

Eleazer  Porter,  appointed  July  2,  1737,  was  of  Had- 
ley,  and  sat  on  the  bench  until  his  death  in  1757. 

Timothy  Dwight,  appointed  July  2,  1737,  and  recom- 
missioned November  8, 1748,  and  January  11, 1758,  was 
of  Northampton,  and  was  admitted  to  the  bar  in  1721. 
He  died  in  1771. 

William  Pynchon,  Jr.,  appointed  July  2,  1737,  was 
son  of  Judge  John  Pynchon,  3d.  He  served  one  year, 
and  died  in  1783. 

William  Pynchon,  3d,  appointed  July  8,  1738,  was 
son  of  Judge  John  Pynchon,  2d,  and  was  born  in 
Springfield  in  1703.    He  served  until  his  death  in  1742. 

Joseph  Pynchon,  appointed  April  2,  1741,  was  born 
in  Springfield  and  graduated  at  Harvard  in  1726.  He 


OF  MASSACHUSETTS. 


135 


was  a  member  of  the  Council  and  Librarian  of  Harvard 
College  in  1729  and  1730,  and  died  in  1765. 

Ephraim  Williams,  appointed  July  21, 1741,  was  born 
in  Newton  and  removed  to  Stockbridge.  He  died  in 
Deerfield. 

Josiah  D wight,  appointed  January  18,  1749-50,  and 
recommissioned  January  11, 1758,  was  a  cousin  of  Judge 
Timothy  D  wight,  and  grandson  of  Timothy  D  wight 
of  Dedham.  He  remained  on  the  bench  until  his  death 
in  1768. 

Joseph  D wight,  appointed  January  4,  1753,  and  re- 
commissioned  January  11,  1758,  graduated  at  Harvard 
in  1722.  He  was  son  of  Henry  D wight  and  was  born 
in  Hatfield,  October  16, 1703.  He  was  admitted  to  the 
bar  in  Worcester  in  1731  and  removed  to  Brookfield. 
He  was  a  Representative  and  Speaker  of  the  House 
and  Judge  of  the  Inferior  Court  of  Worcester  County 
from  1743  to  1750.  Resigning  his  seat  he  removed  to 
Stockbridge.  He  afterwards  removed  to  Great  Bar- 
rington,  and  while  that  town  was  in  Hampshire  County 
was  appointed  Judge  as  above  stated,  in  1753.  When 
Berkshire  County  was  incorporated  in  1761  which  in- 
cluded Great  Barrington,  he  was  appointed  Chief  Jus- 
tice of  the  Inferior  Court  for  that  county,  remaining 
on  the  bench  until  his  death,  June  9, 1765  having  served 
as  Judge  in  three  counties. 

Israel  Williams,  appointed  January  11,  1758,  and  re- 
commissioned  October  26, 1768,  was  son  of  Rev.  William 
Williams  of  Hatfield  and  was  born  in  1708.  He  gradu- 
ated at  Harvard  in  1727,  and  was  a  Representative  from 
Hatfield,  a  member  of  the  Council,  and  Judge  of  Probate 
for  Hampshire  County.  He  sat  on  the  bench  until  1774, 
a  part  of  the  time  as  Chief  Justice  and  died  in  1788. 

Elijah  Williams,  appointed  June  24, 1761,  was  of  Deer- 


136 


JUDICIAL  HISTORY 


field  and  graduated  at  Harvard  in  1732.  He  served  two 
years  and  died  in  1771. 

Thomas  Williams,  appointed  February  1,  1764,  and 
recommissioned  October  26,  1768,  was  son  of  Judge 
Ephraim  Williams,  above  noticed.  He  lived  in  Deer- 
field  and  died  in  1779. 

Oliver  Partridge,  appointed  October  26,  1768,  was 
born  in  Hatfield,  Mass.,  June  13,  1712,  and  graduated 
at  Harvard  in  1730.  He  sat  on  the  bench  until  the 
Revolution  and  died  in  Hadley  July  21,  1792. 

Timothy  D wight,  Jr.,  appointed  October  26,  1768, 
was  born  in  Northampton.  He  sat  on  the  bench  until 
1774  and  died  in  1776. 

Timothy  Danielson,  appointed  December  1,  1777, 
graduated  at  Yale  in  1756  and  was  practising  law  in 
Brimrield,  Mass.,  at  the  time  of  his  appointment.  He 
received  the  degree  of  Master  of  Arts  from  Harvard  in 
1779  and  died  in  Brimfield  in  1791. 

Eleazer  Porter,  appointed  December  1,  1777,  was  of 
Hadley  and  probably  son  of  Judge  Eleazer  Porter  above 
noticed. 

John  Bliss,  appointed  December  1, 1777,  probably  sat 
on  the  bench  until  the  organization  of  the  new  Court  of 
Common  Pleas,  July  3,  1782. 

Samuel  Mather,  appointed  January  16, 1778,  probably 
graduated  at  Harvard  in  1723.  He  practised  law  in 
.Northampton  and  served  only  one  year  on  the  bench. 
He  was  a  fellow  of  the  American  Academy  of  Arts  and 
Sciences  and  died  in.  1785. 

The  Judges  of  the  Inferior  Court  for  Middlesex 
County  under  the  Province  Charter  were  as  follows : 

John  Phillips,  appointed  December  7,  1692 ;  James 
Russell,  appointed  December  7,  1692  ;  Joseph  Lynde, 
appointed  December  7,  1692  ;  Samuel  Hay  man,  ap- 
pointed December  7,  1692 ;  Jonathan  Tyng,  appointed 


OF  MASSACHUSETTS. 


137 


June  29,  1702 ;  Francis  Foxcroft,  appointed  June  29, 
1709 ;  Jonathan  Remington,  appointed  December  9, 
1715 ;  Jonathan  Dowse,  appointed  June  27,  1719 ; 
Charles  Chambers,  appointed  June  27,  1719 ;  Francis 
Fulham,  appointed  June  27,  1719 ;  Thomas  Greaves, 
appointed  June  22,  1733 ;  Francis  Foxcroft,  appointed 
March  9,  1737-8  ;  Thomas  Greaves,  appointed  Decem- 
ber 21, 1739 ;  Samuel  Danforth,  appointed  July  21, 1711 ; 
Chambers  Russell,  appointed  August  19, 1747  ;  Andrew 
Boardman,  appointed  April  7, 1752  ;  William  Lawrence, 
appointed  June  26,  1755 ;  John  Tyng,  appointed  Sep- 
tember 7,  1763 ;  Richard  Foster,  appointed  March  7, 
1761;  Joseph  Lee,  appointed  May  21,  1769;  James 
Russell,  appointed  May  17, 1771 ;  John  Tyng,  appointed 
November  2,  1775  ;  Henry  Gardner,  appointed  Novem- 
ber 2,  1775 ;  John  Remington,  appointed  November  2, 
1775  ;  Samuel  P.  Savage,  appointed  November  2, 1775 ; 
John  Tyng,  appointed  November  27,  1780 ;  Henry 
Gardner,  appointed  November  27,  1780 ;  Samuel  P. 
Savage,  appointed  November  27,  1780 ;  John  Reming- 
ton, appointed  November  27,  1780. 

The  Special  Justices  of  the  Inferior  Court  appointed 
at  various  terms  were  as  follows  : 

Elisha  Hutchinson,  appointed  June  8,  1705 ;  John 
Foster,  appointed  June  8,  1705;  John  Higginson,  ap- 
pointed June  8,  1705 ;  Elisha  Hutchinson,  appointed 
February  25, 1708 ;  John  Foster,  appointed  February  25, 
1708;  John  Higginson,  appointed  February  25,  1708; 
Penn  Townsend,  appointed  February  25, 1708 ;  Jonathan 
Tyng,  appointed  February  25,  1708 ;  Jonathan  Dowse, 
appointed  December  3,  1718 ;  Jonas  Bond,  appointed 
December  3, 1718  ;  Nathaniel  Carey,  appointed  Novem- 
ber 25, 1719  ;  Thomas  Greaves,  appointed  November  25, 
1719 ;  Jonas  Bond,  appointed  September  6,  1723 ; 
Spencer  Phips,  appointed  September  6,  1723 ;  Spencer 


138 


JUDICIAL  HISTORY 


Phips,  appointed  July  18,  1726 ;  Henry  Phillips,  ap- 
pointed August  3,  1729 ;  Francis  Foxcroft,  appointed 
March  19, 1729-30;  Thomas  Greaves,  appointed  July  9, 
1731 ;  Francis  Foxcroft,  appointed  July  9, 1731 ;  Spencer 
Phips,  appointed  July  9,  1731 ;  Habijah  Savage,  ap- 
pointed December  15, 1732 ;  Jacob  Wendell,  appointed 
December  29,  1736 ;  Benjamin  Prescott,  appointed  De- 
cember 29, 1736  ;  Simon  Tufts,  appointed  July  25,  1711 ; 
Ephraim  Curtis,  appointed  July  25,  1741 ;  William 
Lawrence,  appointed  August  12,  1719 ;  William  Law- 
rence, appointed  June  21,  1751 ;  John  Tyng,  appointed 
July  19, 1762 ;  Oliver  Fletcher,  appointed  July  29, 1762 , 
Joseph  Lee,  appointed  March  7,  1761;  Samuel  Liver- 
more,  appointed  September  7,  1768 ;  Charles  Prescott, 
appointed  September  7,  1768;  Josiah  Stone,  appointed 
March  27,  1780. 

John  Phillips,  appointed  Judge  of  the  Inferior  Court 
December  7, 1692,  was  born  in  Charlestown  in  1631.  He 
was  a  Colonial  Kepresentative  from  1683  to  1686  and  one 
of  the  Council  named  in  the  Province  Charter,  remain- 
ing a  member  until  1716.  He  died  March  20,  1725, 
having  left  the  bench  December  9,  1715. 

James  Russell,  appointed  December  7,  1692,  was  son 
of  Richard  Russell  and  was  born  in  Charlestown,  Octo- 
ber 4,  1640.  He  was  a  Colonial  Assistant  and  Repre- 
sentative and  one  of  the  Council  named  in  the  Province 
Charter.  He  sat  on  the  bench  until  April  28, 1709,  the 
day  of  his  death. 

Joseph  Lynde,  appointed  December  7, 1692,  was  born 
in  Charlestown  in  June,  1 636.  He  was  a  Representative 
and  Assistant  in  the  Massachusetts  Colony  and  named 
as  a  member  of  the  Council  in  the  Province  Charter. 
He  remained  on  the  bench  until  June  27,  1719,  and 
died  January  29,  1727. 

Samuel  Hay  man,  appointed  December  7,  1692,  was  of 


OF  MASSACHUSETTS. 


139 


Watertown.  He  was  a  Colonial  Representative  and 
was  named  one  of  the  Council  in  the  Province  Charter. 
He  was  a  Representative  of  Charlestown  in  1690  and 
"Watertown  in  1692.  He  remained  on  the  bench  until 
June  29,  1702. 

Jonathan  Tyng,  appointed  June  29,  1702,  was  son  of 
Edmund  Tyng  and  born  in  1612.  He  had  been  a  Coun- 
cillor under  Dudley  and  Andros.  He  sat  on  the  bench 
until  June  27,  1719  and  died  probably  at  Woburn  Jan- 
uary 19,  1721. 

Francis  Foxcroft,  appointed  June  29,  1709,  was  bora 
in  Cambridge  in  165S.  He  was  a  Judge  under  Andros 
and  again  as  above  stated  in  the  Provincial  Court  of 
Common  Pleas  in  1709.  He  sat  on  the  bench  until 
June  27,  1719. 

Jonathan  Remington,  appointed  December  9,  1715, 
remained  on  the  bench  until  June  22,  1733,  when  he 
was  appointed  Judge  of  the  Superior  Court  of  Judica- 
ture. He  graduated  at  Harvard  in  1696  and  died  in 
1715. 

Jonathan  Dowse,  appointed  June  27,  1719  was  bora 
in  Charlestown  and  graduated  at  Harvard  in  1715.  He 
remained  on  the  bench  until  July  21,  1711,  but  the 
Harvard  catalogue  fails  to  give  the  year  of  his  death. 

Charles  Chambers,  appointed  June  27, 1719,  remained 
on  the  bench  until  December  21,  1739.  He  probably 
was  of  Charlestown. 

Francis  Fulham,  appointed  June  27, 1719,  was  born  in 
Pelham,  a  parish  of  London,  in  1669  and  came  to  Mass- 
achusetts about  1683.  He  lived  in  Weston,  Mass.,  and 
remained  on  the  bench  until  June  20,  1755,  and  died 
January  18,  1758. 

Thomas  Greaves,  appointed  June  22, 1733,  and  recom- 
missioned  December  21,  1739,  has  been  already  noticed 
as  Judge  of  the  Superior  Court  of  Judicature. 


140 


JUDICIAL  HISTORY 


Samuel  Danforth,  appointed  July  21, 1741,  was  son  of 
Rev.  John  Danforth  and  was  born  in  Dorchester,  No- 
vember 12,  1696,  and  graduated  at  Harvard  in  1715. 
He  removed  to  Cambridge  in  1724  where  he  taught 
school  and  was  a  Selectman  from  1733  to  1739.  He  was 
a  Representative  from  1734  to  1738,  Councillor  from 
1739  to  1774,  Register  of  Probate  from  1731  to  1745, 
and  Judge  of  Probate  for  Middlesex  County  from  1745 
to  1775.  He  sat  on  the  bench  until  his  death  which 
occurred  in  Boston  October  27,  1777. 

Chambers  Russell,  appointed  August  19,  1747,  has 
been  already  noticed  as  Judge  of  the  Superior  Court  of 
Judicature. 

Andrew  Boardman,  appointed  April  7,  1752,  was  of 
Cambridge  and  a  Representative  and  Register  of  Pro- 
bate. He  sat  on  the  bench  until  his  death,  May  30, 
1769. 

Francis  Foxcroft,  Jr.,  appointed  March  9, 1737-8,  was 
son  of  Judge  Francis  Foxcroft,  noticed  above,  and  was 
born  in  Cambridge,  January  26,  1695.  He  graduated 
at  Harvard  in  1712,  and  was  Judge  of  Probate  for  Mid- 
dlesex County.  He  sat  on  the  Common  Pleas  bench 
until  1764  and  died  March  28,  1768. 

William  Lawrence,  appointed  June  26,  1755,  was  of 
Groton,  and  sat  on  the  bench  until  September  7,  1763. 

John  Tyng,  appointed  September  7,  1763,  was  born 
in  Dunstable  in  1694,  and  graduated  at  Harvard  in  1725. 
He  was  a  Representative  from  Boston  ten  years  and 
removed  to  Dunstable  about  1760.  He  remained  on 
the  bench  until  1774,  was  recommissioned  in  1775  and 
again  in  1780.  He  was  appointed  in  1782  Judge  of  the 
Middlesex  County  Court  of  Common  Pleas,  and  died 
April  18,  1797. 

Richard  Foster,  appointed  March  7,  1764,  was  of 
Charlestown  and  was  many  years  Sheriff  of  Middlesex 


OF  MASSACHUSETTS. 


141 


County.  He  sat  on  the  bench  until  May  16,  1771,  and 
died  in  August,  1774. 

Joseph  Lee,  appointed  May  24,  1769,  graduated  at 
Harvard  in  1729.  He  lived  in  Cambridge  and  was  ap- 
pointed Mandamus  Councillor,  but  soon  resigned.  He 
remained  on  the  bench  until  the  Revolution  and  died 
December  5,  17S2. 

James  Russell,  appointed  May  17,  1771,  was  son  of 
Daniel  Russell,  and  born  in  Charlestown  August  5, 1715. 
He  was  a  Representative  from  1746  to  1759,  and  after- 
wards a  member  of  the  Council.  At  the  Revolution  he 
removed  to  Dunstable  and  later  to  Lincoln,  returning 
finally  to  Charlestown.  He  sat  on  the  bench  until  the 
Revolution,  and  died  in  Charlestown  in  1798. 

Henry  Gardner,  appointed  November  2, 1775,  was  of 
Stowe  and  graduated  at  Harvard  in  1750.  He  was  re- 
commissioned  November  27, 1780,  and  continued  on  the 
bench  until  his  death  in  1782. 

John  Remington,  appointed  November  2,  1775,  and 
recom missioned  November  27,  1780,  was  probably  son 
of  Judge  Jonathan,  noticed  above. 

Samuel  Phillips  Savage,  appointed  November  2, 1775, 
and  recommissioned  November  27,  1780,  was  born  in 
Boston  in  1718,  and  was  President  of  the  Board  of  War 
during  the  Revolution.  He  removed  to  Weston,  Mass., 
where  he  died  in  December,  1797,  having  sat  on  the 
bench  until  the  organization  of  the  Court  of  Common 
Pleas,  July  3,  1782. 

Before  proceeding  with  the  Judges  of  the  Inferior 
Court  of  Common  Pleas  for  the  County  of  Nantucket, 
as  that  County  is  now  first  introduced  in  connection 
with  the  Judiciary  of  Massachusetts  it  will  be  proper 
to  say  a  word  concerning  the  relations  of  that  Island 
before  its  Union  with  the  Massachusetts  Province  un- 
der the  charter  of  1791.    Such  an  explanation  will 


142 


JUDICIAL  HISTORY 


also  apply  to  Martha's  Vineyard.  Nantucket  and  Mar- 
tha's Vineyard,  as  has  before  been  stated,  were  not  in- 
cluded in  the  Plymouth  Colony  and  were  not  parts  of 
Massachusetts  until  the  Province  charter  was  issued 
October  7th  in  the  above  year.  Nantucket  was  con- 
veyed in  1641  by  James  Forrett,  the  agent  of  William 
Earl  of  Sterling,  to  Thomas  Mayhew  and  his  son  Thomas, 
with  full  powers  to  them  "  and  their  associates  to  plant 
and  inhabit  upon  Nantucket  and  two  other  small  islands 
adjacent,  and  to  eaijoy  the  said  Islands  to  them,  their 
heirs  and  assigns  forever."  In  1659  Thomas  Mayhew 
sold  his  interest  with  certain  reservations  to  Tristram 
Coffin,  Thomas  Macey,  Christopher  Huzzey,  Richard 
Swain,  Thomas  Barnard,  Peter  Coffin,  Stephen  Green- 
leaf,  John  Swain  and  William  Pyle  for  the  considera- 
tion of  thirty  pounds  and  two  Beaver  hats,  one  for  himself 
and  one  for  his  wife.  In  1660  the  purchasers  perfected 
their  title  by  a  deed  from  the  Indians  for  twenty-six 
pounds. 

In  1664  Charles  the  Second  granted  to  "  his  dearest 
brother  "  James,  Duke  of  York,  Nantucket  and  Martha's 
Vineyard  with  other  territory,  and  Richard  Nicolls 
was  made  Deputy  Governor  under  the  Duke  of  York. 
Until  the  issue  of  the  Massachusetts  Province  charter 
in  1691  these  Islands  were  included  within  the  jurisdic- 
tion of  New  York,  and  in  1673  Nantucket  received 
from  Governor  Lovelace,  the  name  of  Sherburne,  which 
it  continued  to  bear  until  1795. 

The  Judges  of  the  Inferior  Court  of  Common  Pleas, 
during  the  provincial  period  were  as  follows :  John 
Gardner,  appointed  October  16, 1696  ;  James  Coffin,  ap- 
pointed October  16,  1696 ;  William  Geare,  appointed 
October  16,  1696 ;  William  Worth,  appointed  October 
16,  1696;  Richard  Gardner,  appointed  June  6,  1706; 
George  Gardner,  appointed  June  8, 1711 ;  George  Bun- 


OF  MASSACHUSETTS. 


143 


ker,  appointed  December  13,  1715  ;  Joseph  Coffin,  ap- 
pointed June  27,  1718  ;  John  Coffin,  appointed  Novem- 
ber 25, 1719  ;  Joseph  Gardner,  appointed  June  28, 1728, 
Josiah  Coffin,  appointed  December  21,  1744;  Thomas 
Brock,  appointed  Januar}'-  3,  1741r-5  ;  Jonathan  Coffin, 
appointed  June  21,  1751  ;•  Grafton  Gardner,  appointed 
June  21, 1751 ;  Caleb  Bunker,  appointed  June  21, 1751 ; 
Obed  Huzzey,  appointed  November  4,  1767;  Josiah 
Coffin,  appointed  1775  ;  Grafton  Gardner,  appointed 
1775 ;  Caleb  Bunker,  appointed  1775 ;  Ebenezer  Calef, 
appointed  1775. 

The  Special  Justices  appointed  at  various  times  were 
Ephraim  Hunt,  appointed  October  24,  1712  ;  Isaac  Win- 
slow,  appointed  October  24,  1712 ;  John  Cushing,  ap- 
pointed October  24,  1712;  Samuel  Thaxter,  appointed 
October  24,  1712;  Ebenezer  Coffin,  appointed  Janu- 
ary 24,  1727-8  ;  Joseph  Lothrop,  appointed  January  24, 
1727-S;  Ezra  Bourne,  appointed  January  24,  1727-8; 
Shubael  Baxter,  appointed  January  24,  1727-8 ;  John 
Thacher,  appointed  January  24, 1727-S ;  John  Cushing, 
appointed  July  8,  1742 ;  Zacheus  Mayhew,  appointed 
July  8, 1742  ;  Sylvanus  Bourne,  appointed  July  8, 1642  ; 
Enoch  Coffin,  appointed  July  8,  1742 ;  Stephen  Huzzey, 
appointed  July  8,  1775. 

John  Gardner,  appointed  Judge  October  16, 1696,  was 
also  Judge  of  Probate  from  1696  to  1706.  He  sat  on 
the  bench  until  his  death  May  6,  1706. 

James  Coffin,  appointed  October  16,  1696,  sat  on  the 
bench  until  about  1716,  and  was  Chief  Justice  a  part  of 
the  time.  He  was  Judge  of  Probate  from  1706  to  1728 
and  died  July  8,  1728. 

William  Geare,  appointed  October  16,  1696,  served 
until  his  death  September  23,  1710. 

William  Worth,  appointed  October  16,  1696,  served 
until  1718. 


144 


JUDICIAL  HISTORY 


Richard  Gardner,  appointed  June  6,  1706  to  succeed 
John  Gardner,  was  Chief  Justice  and  continued  on  the 
bench  until  his  death  May  8,  1728. 

George  Gardner,  appointed  June  8,  1711,  succeeded 
William  Geare  and  was  Chief  Justice.  He  was  Judge 
of  Probate  from  1732  to  1747.  He  sat  on  the  bench 
until  1715  and  died  April  17,  1750. 

George  Bunker,  appointed  December  13, 1715,  sat  on 
the  bench  as  Judge  and  Chief  Justice  until  his  death 
November  24,  1744.  He  was  Judge  of  Probate  from 
1728  to  1732. 

Joseph  Coffin,  appointed  June  27, 1718,  died  July  15, 
1719. 

John  Coffin,  appointed  November  25,  1719,  to  suc- 
ceed Joseph  Coffin,  served  until  his  death  September  1, 
1747. 

Joseph  Gardner,  appointed  June  28,  1728,  to  succeed 
Richard  Gardner,  served  until  his  death  September  29, 
1747. 

Josiah  Coffin,  appointed  December  21, 1744,  succeeded 
George  Bunker  and  sat  on  the  bench  as  Judge  and  Chief 
Justice  until  the  Revolution  and  was  reappointed  Chief 
Justice  in  1775,  serving  until  1781. 

Thomas  Brock,  appointed  January  3,  1744-5,  suc- 
ceeded Joseph  Gardner. 

Jonathan  Coffin,  appointed  June  21,  1751,  succeeded 
George  Gardner  and  sat  on  the  bench  until  1767. 

Grafton  Gardner,  appointed  June  21, 1751,  sat  on  the 
bench  until  the  Revolution  and  was  reappointed  in  1775. 
He  was  also  Judge  of  Probate  from  1767  to  the  Revolu- 
tion. 

Caleb  Bunker,  appointed  June  21,  1751,  served  until 
the  Revolution.  He  was  reappointed  in  1775  and  served 
until  1781. 

Ebenezer  Calef,  was  appointed  Judge  in  1775,  and 
served  until  1781. 


OF  MASSACHUSETTS. 


145 


The  Judges  of  the  Inferior  Court  of  Common  Pleas 
for  Plymouth  County  during  the  Provincial  period  were 
William  Bradford,  appointed  December  7,  1692 ;  ]STa-  * 
thaniel  Thomas,  appointed  December  7,  1692;  John 
Cushing,  appointed  December  7,  1692 ;  Ephraim  Mor- 
ton, appointed  December  7,1692;  John  Wadsworth, 
appointed  October  16,  1696;  Isaac  Little,  appointed 
October  16,  1696;  James  Warren,  appointed  June  7, 
1700  ;  John  Cushing,  Jr.,  appointed  June  7, 1700  ;  Isaac 
Winslow,  appointed  June  29,  1702;  Joseph  Otis,  ap- 
pointed March  18, 1702-3  ;  Seth  Arnold,  appointed  De- 
cember 9,  1715 ;  Nathaniel  Thomas,  Jr.,  appointed 
December  9,  1715 ;  Isaac  Lothrop,  appointed  Novem- 
ber 15,  1721 ;  Josiah  Cotton,  appointed  April  10,  1729  ; 
Nicholas  Sever,  appointed  August  25,  1731 ;  Thomas 
Clap,  appointed  September  9,  1743 ;  Peter  Oliver  ap- 
pointed December  12, 1747 ;  Elijah  Cushing,  appointed 
June  21, 1751 ;  Thomas  Foster,  appointed  September  14, 
1756  ;  John  Winslow,  appointed  January  28, 1762 ;  Ga-  \J 
maliel  Bradford,  appointed  August  19,  1762;  JosIatT 
Edson,  appointed  March  21,  1771 ;  James  Sever,  ap- 
pointed October  26,  1775  ;  William  Sever,  appointed 
September  20,  1780  ;  John  Turner,  appointed  Septem- 
ber 20, 1780  ;  Benjamin  Willis,  appointed  September  20, 
1780 ;  William  Watson,  appointed  September  20, 1780. 

The  Special  Justices  appointed  at  various  times  were 
Seth  Arnold,  appointed  October  27,  1713  ;  Josiah  Ed- 
son,  appointed  October  27,  1713  ;  Josiah  Cotton,  ap- 
pointed January  17, 1727 ;  Edward  Winslow,  appointed 
April  10,  1729  ;  Samuel  Thaxter,  appointed  Decem- 
ber 12, 1729 ;  Edward  Winslow,  appointed  December  12, 
1729;  Nicholas  Sever,  appointed  December  12,  1729; 
Isaac  Lothrop,  appointed  December  15,  1732 ;  Edward 
Winslow,  appointed  December  15,  1732 ;  Thomas 
Croade,  appointed  October  27,  1740  ;  John  Little,  ap- 
10 


146 


JUDICIAL  HISTORY 


pointed  April  8, 1743  ;  Thomas  Clap,  appointed  April  8, 
1743  ;  Benjamin  Stockbridge,  appointed  April  8, 1743 , 
Thomas  Foster,  appointed  April  24,  1751  ;  Thomas 
Croade,  appointed  January  28,  1762  ;  Josiah  Edson,  ap- 
pointed February  17,  1763  ;  David  Stockbridge,  ap- 
pointed February  17,  1763:  John  Cotton,  appointed 
October  26, 1775  ;  Ephraim  Spooner,  appointed  Novem- 
ber 17,  1778. 

William  Bradford,  appointed  Judge  December  7, 
1692,  was  son  of  Governor  William  Bradford,  and  was 
born  in  Plymouth  June  17, 1624.  He  was  an  Assistant 
in  1658  and  1681,  Deputy  Governor  from  1682  to  1692, 
except  during  the  short  administration  of  Andros,  and 
Judge  of  Probate  from  1693  to  1702.  He  commanded 
the  troops  of  Plymouth  Colony  during  King  Philip's 
War  and  died  in  that  part  of  Plymouth  which  was  in 
1726  incorporated  as  Kingston,  February  20,  1703-4. 
He  married,  first,  Alice,  daughter  of  Thomas  Richards 
of  Weymouth,  second,  a  widow  Wisewall,  and  third, 
Mary,  daughter  of  John  Atwood  and  widow  of  John 
Holmes. 

Nathaniel  Thomas,  appointed  December  7,  1692,  has 
been  noticed  as  Judge  of  the  Superior  Court  of  Judi- 
cature. 

John  Cushing,  appointed  December  7, 1692,  has  been 
noticed  as  Judge  of  the  Superior  Court  of  Judicature. 

Ephraim  Morton,  appointed  December  7,  1692,  was 
son  of  George  and  Julia  (Carpenter)  Morton,  and 
brother  of  Nathaniel  Morton,  Secretary  of  Plymouth 
Colony  and  author  of  New  England's  Memorial.  He 
was  born  in  Plymouth  in  1623. 

John  Wadsworth,  appointed  October  16,  1696,  was 
probably  son  of  Christopher  and  Grace  Wadsworth, 
and  was  born  in  Duxbury  in  1638.  He  married  in  1667 
Abigail  Andrews,  and  died  in  office  May  15,  1700. 


OF  MASSACHUSETTS. 


147 


Isaac  Little,  appointed  October  16,  1696,  was  proba- 
bly son  of  Thomas  and  Ann  (Warren)  Little,  and  was 
born  in  Plymouth  in  1646.  He  died  in  office  Decem- 
ber 29,  1699. 

James  Warren,  appointed  June  7,  1700,  was  son  of 
Nathaniel  and  Sarah  (Walker)  Warren,  and  grandson 
of  Richard  Warren  of  the  Mayflower.  He  was  Sheriff 
in  1699,  and  a  Representative.  He  remained  on  the 
bench  until  June,  1714,  and  died  in  May,  1715. 

John  Cushing,  Jr.,  appointed  June  7,  1700,  has  been 
noticed  as  Judge  of  the  Superior  Court  of  Judicature. 

Isaac  Winslow,  appointed  June  29,  1702,  was  son  of 
Governor  Josiah  and  Penelope  (Pelham)  Winslow,  and 
was  born  in  Mansfield  in  1670.  He  was  Judge  of  Pro- 
bate from  1718  to  1738,  and  sat  on  the  Inferior  Bench 
until  his  resignation  in  May,  1738.  He  married  Sarah, 
daughter  of  John  Wensley  of  Boston,  and  died  in  De- 
cember, 1738. 

Joseph  Otis,  appointed  March  18,  1702-3,  was  son  of 
John  and  Mary  (Jacobs)  Otis,  and  was  born  in  Scituate, 
in  1665. 

Seth  Arnold,  appointed  December  9,  1715,  was  son 
of  Rev.  Samuel  Arnold  of  Dnxburv,  and  in  1700  was 
Sheriff. 

Nathaniel  Thomas,  Jr.,  appointed  December  9, 1715, 
was  son  of  Nathaniel  and  Deborah  (Jacobs)  Thomas, 
and  was  born  in  Marsh  field  in  1664.  He  was  Register 
of  Probate  from  1702  to  1729.  He  married,  first,  in 
1694,  Mary,  daughter  of  John  Appleton  of  Ipswich,  and 
second,  Anna  (Tisdale),  widow  of  George  Leonard,  and 
died  in  February,  1739. 

Isaac  Lothrop,  appointed  November  15,  1721,  was 
son  of  Meltiah  and  Sarah  (Farrar)  Lothrop,  and  was 
born  in  Barnstable  in  1673.  He  was  Sheriff  of  Plym- 
outh County  from  1706  to  1721.    He  married  in  1698 


148 


JUDICIAL  HISTORY 


Elizabeth,  daughter  of  Jonathan  Barnes  of  Plymouth, 
and  died  in  office  September  10,  1743. 

Josiah  Cotton,  appointed  April  10,  1729,  was  son  of 
Kev.  John  and  Joanna  (Rossiter)  Cotton,  and  was  born 
in  Plymouth,  January  8,  1679-80.  He  graduated  at 
Harvard  in  1698,  was  Register  of  Probate  from  1729 
to  1756,  Clerk  of  the  Courts  from  1713  to  1715,  County 
Treasurer  and  Register  of  Deeds  from  1713  to  1756, 
and  sat  on  the  Inferior  Bench  until  1747.  He  married 
in  1708  Hannah,  daughter  of  John  Sturtevant,  and  died 
in  1756. 

Nicholas  Sever,  appointed  August  25,  1731,  was  son 
of  Caleb  and  Sarah  (Ingoldsbury)  Sever  and  was  born 
in  Roxbury,  in  1680.  He  graduated  at  Harvard  1701, 
studied  theology  and  was  settled  in  Dover,  N.  H.,  from 
1711  to  1715.  He  finally  took  up  his  residence  in  that 
part  of  Plymouth  now  Kingston,  and  married  in  1728 
Sarah,  widow  of  Charles  Little,  and  daughter  of  James 
Warren  of  Plymouth.  He  died  in  Kingston,  April  7, 
1764,  having  resigned  his  seat  on  the  bench  two  years 
before. 

Thomas  Clap,  appointed  September  9, 1743,  was  born 
in  Scituate,  in  1705,  and  graduated  at  Harvard  in  1725. 
He  was  settled  in  the  ministry  for  a  time  in  Taunton, 
and  died  in  1774,  having  sat  on  the  bench  until  1770. 

Peter  Oliver,  appointed  December  12, 1747,  has  been 
noticed  as  Judge  of  the  Superior  Court  of  Judicature. 

Elijah  Cushing,  appointed  June  21,  1751,  was  son  of 
John  Cushing,  2d,  above  mentioned,  and  was  born  in 
Scituate.    He  died  in  office,  June  26,  1762. 

Thomas  Foster,  appointed  September  14,  1756,  was 
son  of  John  and  Hannah  (Stetson)  Foster,  and  was  born 
in  Plymouth,  in  1705.  He  served  on  the  bench  until 
the  Revolution,  and  died  in  1777.  He  married  Lois, 
daughter  of  Jabez  Fuller  of  Barnstable. 


OF  MASSACHUSETTS. 


149 


John  Winslow,  appointed  January  28,  1762,  was  son 
of  Isaac  and  Sarah  (Wensley)  Winslow  and  was  born 
in  Marshfield,  May  27,  1702.  Plymouth  was  long  his 
home  and  the  house  built  and  occupied  by  him  in  that 
town  is  still  standing  at  the  corner  of  Main  and  North 
streets.  He  was  Clerk  of  the  Courts  many  years,  and 
served  on  the  bench  until  his  death  April  17,  1774.  In 
1740,  he  commanded  an  expedition  against  Cuba,  and 
in  July,  1756,  was  commissioned,  by  Governor  Hardy 
of  New  York,  General  and  Commander  in  Chief  of  the 
provincial  troops  and  in  1757,  Major  General  by  Gov- 
ernor Pownal.  He  is  well  known  in  history  as  the 
commander  of  the  expedition  against  the  Neutral  French 
in  Nova  Scotia  in  1755.  He  married,  first,  in  1726, 
Mary,  daughter  of  Isaac  Little,  of  Plymouth,  and  second 
a  widow  Johnson,  whose  maiden  name  was  Barker,  of 
Hingham,  to  which  town  he  finally  removed  and  where 
he  died. 

Gamaliel  Bradford,  appointed  August  19,  1702,  was 
son  of  Samuel  and  Hannah  (Rogers)  Bradford,  and  was 
born  in  Duxbury  in  1704.  He  was  a  Representative  and 
Councillor,  and  sat  on  the  bench  until  the  Revolution. 
He  married  in  1728,  Abigail,  daughter  of  Benjamin 
Bartlett. 

Josiah  Edson,  appointed  March  21,  1771,  was  born 
in  Bridgewater  about  1710,  and  graduated  at  Harvard 
in  1730.  He  sat  on  the  bench  until  the  Revolution,  and 
being  a  Loyalist,  went  to  New  York  at  the  evacuation  of 
Boston,  and  died  in  1778. 

James  Sever,  appointed  October  26,  1775,  was  son  of 
Nicholas  and  Sarah  (Little)  (Warren)  Sever,  and  was 
born  in  Kingston  in  1733. 

William  Sever,  appointed  September  20,  1780,  was 
brother  of  James  above  mentioned,  and  was  born  in 
Kingston  in  1730.    He  graduated  at  Harvard  in  1745 


150 


JUDICIAL  HISTORY 


and  was  Judge  of  Probate  from  1775  to  1778.  He  mar- 
ried in  1755,  Sarah,  daughter  of  James  and  Penelope 
(Winslow)  Warren,  and  died  in  1809. 

John  Turner,  appointed  September  20,  1780,  was  of 
Scituate. 

Benjamin  Willis,  appointed  September  20,  1780,  was 
born  in  Briclgewater  about  1720  and  graduated  at  Har- 
vard in  1740.  He  married  in  1742,  Bethsheba  Williams 
of  Taunton,  and  second,  in  1761,  Sarah  Bradford  of 
Plymouth,  and  died  in  1807. 

William  Watson,  appointed  September  20,  1780,  was 
son  of  John  and  Priscilla  (Thomas)  Watson,  and  was 
born  in  Plymouth  in  1730,  and  graduated  at  Harvard 
in  1751.  He  married  in  1756  Elizabeth,  daughter  of 
Benjamin  Marston  of  Manchester  and  died  in  Plymouth 
in  1815. 

The  Judges  of  the  Inferior  Court  of  Common  Pleas 
for  Suffolk  County  during  the  Provincial  period  were 
Elisha  Hutchinson,  appointed  December  7, 1692  ;  John 
Foster,  appointed  December  7,  1692  ;  Peter  Sergeant, 
appointed  December  7,  1692  ;  Isaac  Addington,  ap- 
pointed December  7,  1692;  Jeremiah  Dummer,  ap- 
pointed July  2,  1702 ;  Perm  Townsend,  appointed 
August  14,  1702 ;  Thomas  Palmer,  appointed  June  11, 
1711 ;  Edward  Lyde,  appointed  December  9,  1715  ; 
Adam  Winthrop,  appointed  December  9, 1715  ;  Edward 
Hutchinson,  appointed  December  9,  1723;  William 
Dudley,  appointed  December  26,  1727 ;  Nathaniel  By- 
field,  appointed  December  29,  1731 ;  Elisha  Cooke, 
appointed  December  29,  1731 ;  Anthony  Stoddard, 
appointed  January  21,  1733 ;  Eliakim  Hutchinson,  ap- 
pointed December  31, 1741 ;  Edward  Winslow,  appointed 
October  20,  1743 ;  Samuel  Watts,  appointed  April  6, 
1748  ;  Thomas  Hutchinson,  appointed  April  3,  1752 ; 
Samuel  Wells,  appointed  January  8,  1755 ;  Foster 


OF  MASSACHUSETTS. 


151 


Hutchinson,  appointed  April  1,  1758 ;  William  Reed, 
appointed  May  9,  1770;  Nathaniel  Hatch,  appointed 
January  10,  1771 ;  Joseph  Green,  appointed  July  3, 
1772  ;  Thomas  Hutchinson,  Jr.,  appointed  December  31, 
1772 ;  Benjamin  Gridley,  appointed  May,  1775 ;  Sam- 
uel Dexter,  appointed  October  31, 1775  ;  John  Hill,  ap- 
pointed October  31,  1775 ;  Samuel  Mies,  appointed 
October  31,  1775 ;  Samuel  Pemberton,  appointed  Oc- 
tober 31, 1775  ;  Thomas  Cushing,  appointed  February  8, 
1776. 

The  following  Special  Justices  of  the  Inferior  Court 
were  appointed  at  various  times  : 

Samuel  Checkley,  appointed  December  18,  1725  ;  An- 
thony Stoddard,  appointed  December  18,  1725  ;  Fran- 
cis Fulham,  appointed  February  3,  1731-2;  Thomas 
Greaves,  appointed  February  3,  1731-2;  Hugh  Hall, 
appointed  February  3, 1731-2 ;  JosiahQuincy,  appointed 
December  31,  1734 ;  Samuel  Danforth,  appointed  Feb- 
ruary 21,  1731-5  ;  Francis  Foxcroft,  appointed  Febru- 
ary 21, 1731-5  ;  John  Quincy,  appointed  April  6,  1748  ; 
James  Minot,  appointed  April  6,  1748  ;  Benjamin  Lin- 
coln, appointed  January  24,  1770 ;  Joseph  Williams, 
appointed  January  24, 1770 ;  Thomas  Cushing,  appointed 
October  31, 1775  ;  Joseph  Palmer,  appointed  October  31, 
1775  ;  Richard  Cranch,  appointed  1780  ;  Joseph  Gard- 
ner, appointed  1780  ;  Edmund  Quincy,  appointed  1780. 

Elisha  Hutchinson,  appointed  Judge  December  7, 
1692,  was  son  of  Edward,  and  born  in  Boston  in  1640, 
and  was  an  Assistant  from  1684  to  1686.  His  business 
was  that  of  a  merchant,  and  he  remained  on  the  bench 
until  his  death,  December  10,  1717. 
.  John  Foster,  appointed  December  7,  1692,  was  born 
in  England  and  came  to  Massachusetts  in  1682.  He 
was  one  of  the  Council  named  in  the  Province  Charter 
and  continued  a  member  of  that  body  until  his  death, 


152 


JUDICIAL  HISTORY 


February  9,  1711.  He  sat  on  the  bench  until  Janu- 
ary, 1710. 

Peter  Sergeant,  appointed  December  7, 1692,  has  been 
noticed  as  one  of  the  Judges  of  the  Court  of  Oyer  and 
Terminer  organized  to  try  the  witchcraft  cases. 

Isaac  Addington,  appointed  December  7,  1692,  has 
been  already  noticed  as  a  Judge  of  the  Superior  Court 
of  Judicature. 

Jeremiah  Dummer,  appointed  July  2,  1702,  was  son 
of  Eichard,  and  born  in  Newbury,  Mass.,  September  14, 
1615.  He  sat  on  the  bench  until  1715,  and  died  May  24, 
1718. 

Penn  Townsend,  appointed  August  14,  1702,  was  son 
of  William,  and  born  in  Boston  in  1651.  He  was  a 
Colonial  Representative  in  1686  and  again  Representa- 
tive from  1689  to  1698,  and  Speaker  of  the  House  from 
1694  to  1697.  He  sat  on  the  bench  until  1727  and  after 
1718  as  Chief  Justice,  and  died  August  21,  1727. 

Thomas  Palmer,  appointed  June  11,  1711,  sat  on  the 
bench  until  his  death,  October  8,  1740,  and  after  1727 
as  Chief  Justice. 

Edward  Lyde,  appointed  December  9,  1715,  served 
until  1723. 

Adam  Winthrop,  appointed  December  9,  1715,  was 
fourth  in  direct  descent  from  Governor  John  Winthrop, 
and  son  of  Adam.  He  graduated  at  Harvard  in  1694, 
and  was  a  Representative  and  member  of  the  Council. 
He  sat  on  the  bench  until  his  resignation  in  1741,  serv- 
ing as  Chief  Justice  after  the  death  of  Thomas  Palmer 
in  1740.    He  died  October  2,  1743. 

William  Dudley,  appointed  December  26,  1727,  was 
son  of  Governor  Joseph  Dudley,  and  was  born  in  Rox- 
bury  in  1686.  He  graduated  at  Harvard  in  1704,  was 
a  Representative  many  years  and  Speaker  of  the  House 
from  1724  to  1728.    He  was  a  member  of  the  Council 


OF  MASSACHUSETTS. 


153 


from  1729  to  1710.  In  1731  he  was  displaced  by  Gov- 
ernor Belcher,  but  reappointed  to  the  bench  by  him  in 
1733,  remaining  until  his  death,  August  10,  1713. 

Nathaniel  By  field,  appointed  December  29,1731,  has 
been  already  noticed  as  Judge  of  the  Admiralty  Court. 

Elisha  Cooke,  appointed  December  29,  1731,  was  son 
of  Judge  Elisha  Cooke,  who  was  Judge  of  the  Superior 
Court  of  Judicature  from  1692  to  1702,  and  was  born 
December  20,  1678.  He  graduated  at  Harvard  in 
1697  and  studied  and  practiced  medicine.  In  1702  he 
was  appointed  Clerk  of  the  Superior  Court  and  held 
that  office  until  1718.  He  was  a  Representative,  and 
when  chosen  Speaker  of  the  House  his  election  was 
vetoed  by  Governor  Shute.  In  1726  he  was  chosen  a 
member  of  the  Council  from  which  he  had  been  removed 
in  1719  by  Governor  Shute.  He  was  appointed  in  1731 
Judge  of  the  Inferior  Court  in  the  place  of  William  Dud- 
ley, above  mentioned,  but  left  the  bench  in  1733  Avhen 
Judge  Dudley  was  reinstated.    He  died  in  1737. 

Anthony  Stoddard,  appointed  January  21,  1733,  was 
son  of  Simeon  and  born  in  1678.  He  was  a  Represent- 
ative, and  a  member  of  the  Council  from  1735  to  1712. 
He  graduated  at  Harvard  in  1697,  and  sat  on  the  bench 
until  his  death,  March  11,  1718. 

Edward  Hutchinson,  appointed  in  1723,  was  son  of 
Judge  Elisha  Hutchinson,  and  born  in  1678.  He  was 
a  Representative  from  Boston  in  1717  and  1718.  In 
1731  he  was  displaced  from  the  bench  by  Governor 
Belcher,  with  William  Dudley,  to  give  place  to  Elisha 
Cooke  and  Nathaniel  Byfield,  but  was  reappointed  in 
1740.  In  1711,  on  the  resignation  of  Adam  Winthrop, 
he  was  make  Chief  Justice  and  served  until  his  death, 
March  16,  1752.    He  was  also  Judge  of  Probate. 

Eliakim  Hutchinson,  appointed  December  31,  1711, 
graduated  at  Harvard  in  1730,  and  was  a  member  of 


154 


JUDICIAL  HISTORY 


the  Council  from  1744  to  1746.  He  succeeded  Edward 
Hutchinson  as  Chief  Justice  in  1752  and  remained  until 
the  Revolution. 

Edward  Winslow,  appointed  October  20,  1743,  son 
of  Edward  and  Elizabeth  (Hutchinson)  Winslow,  and 
grandson  of  John,  who  came  to  Plymouth  in  the  For- 
tune in  1621  and  married  Mary  Chilton,  one  of  the 
Mayflower's  passengers,  was  born  in  Boston  in  1669. 
He  was  Sheriff  from  December  12, 1728,  to  October  20, 
1743,  when  he  was  appointed  Judge,  and  continued 
on  the  bench  until  his  death  in  December,  1753.  At 
the  time  of  his  death  he  was  Treasurer  of  Suffolk  County. 

Samuel  Watts,  appointed  April  6,  1748,  was  a  mem- 
ber of  the  Council  from  1742  to  1763.  He  continued 
on  the  bench  until  his  death,  March  12,  1770. 

Thomas  Hutchinson,  appointed  April  3,  1752,  has 
been  already  noticed  as  Judge  of  the  Superior  Court  of 
Judicature. 

Samuel  Wells,  appointed  January  8,  1755,  graduated 
at  Harvard  in  1744.  He  was  a  Representative,  and  a 
member  of  the  Council  in  1747  and  1748.  He  remained 
on  the  bench  until  his  death,  May  20,  1770. 

Foster  Hutchinson,  appointed  April  1,  1758,  was  a 
brother  of  Governor  Thomas  Hutchinson,  and  son  of 
Thomas,  of  Boston.  He  was  born  in  Boston  about 
1702  and  graduated  at  Harvard  in  1721.  He  has  been 
already  noticed  as  Judge  of  the  Superior  Court  of  Judi- 
cature. 

William  Reed,  appointed  May  9,  1770,  has  already 
been  noticed  as  Judge  of  the  Court  of  Admiralty. 

Nathaniel  Hatch,  appointed  January  10,  1771,  was 
born  in  Dorchester,  Mass.,  and  graduated  at  Harvard 
in  1742.  As  a  Loyalist  he  left  the  country  at  the  Rev- 
olution and  died  in  1780. 

Joseph  Green,  appointed  July  3,  1772,  left  the  bench 


OF  MASSACHUSETTS. 


155 


December  31  in  the  same  year.  He  was  a  Loyalist 
and  left  the  country  at  the  Revolution. 

Thomas  Hutchinson,  Jr.,  appointed  December  31, 
1772,  was  son  of  Governor  Thomas  Hutchinson,  and 
graduated  at  Harvard  in  1758.  Being  a  Loyalist  he  left 
the  country  at  the  Revolution,  and  died  in  England  in 
1811. 

Benjamin  Gridley,  appointed  May,  1775,  was  a 
Barrister,  and  graduated  at  Cambridge  in  1751.  His 
was  the  last  appointment  made  by  a  Royal  Governor. 
He  went  to  Halifax  in  1776,  and  in  1778  was  proscribed. 
He  probably  died  in  England. 

Samuel  Dexter,  appointed  October  31,  1775,  was 
son  of  Rev.  Samuel  Dexter  of  Dedham,  Mass.,  and  was 
born  in  that  town  in  1726.  Engaging  in  mercantile 
pursuits,  he  was  a  Representative  and  member  of  the 
Council.  During  the  Revolution  he  was  one  of  the 
Supreme  Executive  Council  of  the  State,  and  his  ap- 
pointment as  Judge  was  made  by  the  Council  in  the 
name  of  "  the  Government  and  People  of  Massachusetts 
Bay  in  New  England."  He  gave  by  his  will  $5,000  to 
Harvard  College  for  the  encouragement  of  Biblical 
criticism,  and  died  in  Mendon,  Mass.,  in  1810. 

John  Hill,  appointed  October  31,  1775,  whose  ap- 
pointment was  similar  to  that  of  Judge  Dexter  above 
mentioned,  probably  remained  on  the  bench  until  the 
organization  of  the  new  Court  of  Common  Pleas,  July  3, 
1782. 

Samuel  Mies,  appointed  October  31,  1775,  graduated 
at  Harvard  in  1731.  His  appointment  was  similar  to 
the  appointments  of  Judges  Dexter  and  Hill.  He  died 
in  1804. 

Samuel  Pemberton,  also  appointed  by  the  Council, 
October  31,  1775,  graduated  at  Harvard  in  1742.  He 
died  in  1779. 


156 


JUDICIAL  HISTORY 


"Worcester  County  was  incorporated  April  2,  1731. 
In  the  act  of  incorporation  it  was  provided  that  a  Court 
of  General  Sessions  of  the  Peace  and  an  Inferior  Court 
should  be  held  at  Worcester  on  the  second  Tuesdays  of 
May  and  August  and  the  first  Tuesdays  of  November 
and  February  in  each  year,  and  a  session  of  the  Superior 
Court  of  Judicature  on  the  Wednesday  immediately 
preceding  the  session  at  Springfield,  then  in  the  County 
of  Hampshire.  It  further  provided  that  the  Court  of 
General  Sessions  of  the  Peace  should  appoint  a  Eegister 
of  Deeds,  who  should  hold  office  until  the  election  on 
the  first  Thursday  of  the  next  September.  The  first 
Court  of  Probate  was  held  July  13,  1731,  the  first  ses- 
sion of  the  Court  of  General  Sessions  of  the  Peace  and 
of  the  Inferior  Court  on  the  10th  of  August,  and  of  the 
Superior  Court  on  the  22d  of  September.  The  Judges 
of  the  Superior  Court  present  at  its  first  session  were 
Chief  Justice  Benjamin  Lynde  and  Associate  Justices 
Paul  Dudley  and  Edmund  Quincy.  On  the  occasion  of 
the  first  session  of  the  Inferior  Court,  Pev.  John  Pren- 
tice of  Lancaster  preached  a  sermon  from  the  text,  2 
Chronicles,  chapter  19,  verses  6  and  7 :  "  And  said  to 
the  Judges  take  heed  what  you  do ;  for  jTe  judge  not 
for  man  but  for  the  Lord,  who  is  with  you  in  judg- 
ment ;  wherefore  now  let  the  fear  of  the  Lord  be  upon 
you ;  take  heed  and  do  it,  for  there  is  no  iniquity  with 
the  Lord  our  God,  nor  respect  of  persons,  nor  taking  of 
gifts." 

The  early  sessions  , of  the  courts  were  held  in  the  meet- 
inghouse in  Worcester  but  a  court  house  was  erected 
in  1733,  on  land  given  by  Judge  Jennison  near  the  site 
of  the  present  brick  courthouse.  It  was  opened  Febru- 
ary 8,  1734,  and  occupied  until  1751  when  a  new  court 
house  was  built  on  Court  Hill  at  the  corner  of  Green 
and  Franklin  streets.    The  corner  stone  of  the  brick 


OF  MASSACHUSETTS. 


157 


building  now  standing  was  laid  October  1,  1801  and 
the  building  was  opened  September  27,  1803,  on  which 
occasion  Judge  Robert  Treat  Paine,  of  the  Supreme 
Judicial  Court,  delivered  an  address.  In  February, 
1812,  the  County  Commissioners  decided  to  build  an- 
other court  house  and  the  granite  building  now  chiefly 
used  for  county  purposes  was  erected  at  a  cost  of 
$100,000,  on  the  site  of  the  house  of  Isaiah  Thomas, 
which  was  removed  to  the  rear  and  is  thought  by  the 
writer  to  be  still  standing.  It  was  opened  Septem- 
ber 30,  1845,  on  which  occasion  Chief  Justice  Lemuel 
Shaw  of  the  Supreme  Judicial  Court  delivered  an  address. 

On  the  6th  of  June,  1856,  an  Act  was  passed  provid- 
ing for  the  holding  of  three  terms  of  the  Common 
Pleas  Court  in  Fitchburg  and  in  1871,  a  court  house 
was  erected  in  that  town  at  a  cost  of  about  $125,000. 
On  the  29th  of  February,  1884,  Worcester  County  was 
divided  into  two  districts  for  the  registration  of  deeds  ; 
one  including  Ashburnham,  Fitchburg,  Leominster, 
Lunenburg  and  Westminster  to  be  called  the  Northern 
District,  and  the  other  including  the  remainder  of  the 
county  to  be  called  the  Southern  District. 

The  Judges  of  the  Inferior  Court  of  Common  Pleas 
for  Worcester  County  during  the  Provincial  period 
were  John  Chandler,  appointed  June  30,  1731 ;  Jo- 
seph Wilder,  appointed  June  30, 1731 ;  William  Ward, 
appointed  June  30,  1731 ;  William  Jennison,  appointed 
June  30,  1731 ;  Joseph  Dwight,  appointed  October  5, 
1739  ;  Samuel  Willard,  appointed  January  27,  1742-3 ; 
Nahum  Ward,  appointed  December  21,  1744;  Edward 
Hart  well,  appointed  January  2,  1753  ;  John  Chandler, 
appointed  April  19,  1754;  Thomas  Steele,  appointed 
June  26,  1755 ;  Timothy  Euggles,  appointed  April  19, 
1757 ;  Joseph  Wilder,  appointed  January  21, 1762  ;  Arte- 
mas  Ward,  appointed  January  21, 1702  ;  Artemas  Ward, 


158 


JUDICIAL  HISTORY 


appointed  October  17, 1775  ;  Jedediah  Foster, appointed 
October  17,  1775  ;  Moses  Gill,  appointed  October  17, 
1775  ;  Samuel  Baker,  appointed  October  17,  1775  ;  Jo- 
seph Dorr,  appointed  September  19,  1776  ;  Artemas 
Ward,  appointed  March  1,  1881 ;  Moses  Gill,  appointed 
March  1,  1881 ;  Samuel  Baker,  appointed  March  1, 
1881 ;  Joseph  Dorr,  appointed  March  1,  1881. 

The  Special  Justices  of  the  Inferior  Court  appointed 
at  various  times  were  Joseph  Dwight,  appointed 
February  21,  1733-4;  Nahum  Ward,  appointed  Feb- 
ruary 21,  1733-4 ;  Nahum  Ward,  appointed  June  23, 
1743;  Edward  Hart  well,  appointed  June  23,  1743; 
Edward-  Hartwell,  appointed  April  5,  1745;  Jonas 
Rice,  appointed  April  26,  1745  ;  Jonas  Rice,  appointed 
March  29,  1749-50  ;  Jonas  Rice,  appointed  January  2, 
1753;  Thomas  Steele,  appointed  January  16,  1754; 
Joseph  Wilder,  Jr.,  appointed  January  16, 1754;  Sam- 
uel Willard,  appointed  June  26,  1755  ;  Artemas  Ward, 
appointed  June  26, 1755  ;  John  Murray,  appointed  Jan- 
uary 21, 1762  ;  Joseph  Wheeler,  appointed  October  17, 
1775  ;  Jonathan  Ward,  appointed  September  24,  1778. 

Judge  Washburn  in  his  Judicial  History  says  that 
Jonas  Rice  was  a  standing  Judge  of  the  Inferior  Court 
at  the  time  of  his  death,  September  22,  1753.  The 
writer  omits  him  from  the  above  list,  finding  no  au- 
thority in  the  records  for  the  inclusion  of  his  name. 
He  was  appointed  Special  Justice  in  1745-1749-50  and 
January  2,  1753,  the  last  year  being  that  of  his  death. 
It  is  probable  that  the  last  appointment  led  to  the  error. 

John  Chandler,  who  was  appointed  Judge  June  30, 
1731,  belonged  in  Woodstock,  then  in  Massachusetts 
but  now  in  Connecticut.  He  was  also  Judge  of  Pro- 
bate from  1730  to  1740,  and  when  appointed  to  the  In- 
ferior Court  was  made  Chief  Justice.  He  sat  on  the 
bench  until  his  death  in  1743. 


OF  MASSACHUSETTS. 


159 


Joseph  Wilder,  appointed  June  30, 1731,  was  of  Lan- 
caster and  in  1743  succeeded  John  Chandler  as  Chief 
Justice.  He  succeeded  him  also  as  Judge  of  Probate 
in  1740,  and  held  both  offices  until  his  death,  March  29, 
1757. 

William  Ward,  appointed  June  30,  1731,  was  of 
Southboro. 

William  Jennison,  appointed  June  30,  1731,  was  of 
Worcester  and  graduated  at  Harvard  in  1724.  He  sat 
on  the  bench  until  his  death,  September  19,  1741. 

Joseph  D wight,  appointed  October  5,  1739,  has  been 
already  noticed  as  Judge  of  the  Inferior  Court  of  Com- 
mon Pleas  in  Hampshire  County. 

Samuel  Willard,  appointed  January  27,  1742-3,  was 
of  Lancaster,  and  remained  on  the  bench  until  1753. 

Nahum  Ward,  appointed  December  21,  1744,  was 
perhaps  of  Shrewsbury,  Mass.  He  was  father  of  Arte- 
mas  Ward  hereafter  mentioned  as  Judge  of  the  Inferior 
Court,  and  grandfather  of  Artemas  Ward,  Chief  Justice 
of  the  Court  of  Common  Pleas  for  the  Commonwealth 
at  the  time  of  its  establishment  in  1820.  He  remained 
on  the  bench  until  1762. 

Edward  Hartwell,  appointed  January  2,  1753,  was 
born  in  Lunenburg,  Mass.,  in  1689,  and  died  February  17, 
1785. 

John  Chandler,  appointed  April  19,  1754,  was  son  of 
Judge  John  Chandler  above  noticed,  and  was  born  in 
Woodstock,  then  in  Massachusetts  but  now  in  Connec- 
ticut, October  10,  1693.  He  removed  to  Worcester  in 
1731,  and  was  Clerk  of  the  Courts  and  Register  of 
Probate  from  that  time  until  1754  and  Register  of 
Deeds  until  1762.  He  was  also  Sheriff  of  Worcester 
County  from  1751  to  1762,  and  succeeded  Judge  Wil- 
der as  Judge  of  Probate  in  1757.  He  died  at  Worcester 
in  1763. 


160 


JUDICIAL  HISTORY 


Thomas  Steele,  appointed  June  26,  1755,  was  born 
in  Boston  and  graduated  at  Harvard  in  1730.  He  set- 
tled in  Lancaster  as  a  merchant  and  served  on  the 
bench  until  the  Revolution.  He  was  a  Loyalist  but 
died  in  1776. 

Timothy  Ruggles,  appointed  April  19,  1757,  was  born 
in  Rochester,  Mass.,  October  11,  1711,  and  graduated 
at  Harvard  in  1732.  He  practiced  law  in  Rochester 
and  Sandwich  and  in  1755  removed  to  Hard  wick,  Mass. 
He  was  appointed  Chief  Justice  in  1762  and  in  1762  and 
1763  was  Speaker  of  the  House  of  Representatives.  He 
was  an  earnest  Loyalist  and  in  1774  accepted  the  posi- 
tion of  Mandamus  Councillor.  At  the  Revolution  he 
abandoned  his  estates  in  Hardwick  and  went  to  Bos- 
ton and  then  joined  the  Royal  Army  on  Long  Island. 
He  finalty  removed  to  Halifax,  Nova  Scotia,  where  he 
died  in  1798.  He  was  a  man  of  versatile  talents  being 
at  one  time  a  hotel  keeper  in  Sandwich  as  well  as  law- 
yer and  later  in  life  a  distinguished  military  officer.  In 
the  expedition  against  Crown  Point  in  1755  he  held  the 
rank  of  Colonel,  and  in  the  battle  at  Lake  George  the 
same  year  he  was  second  in  command.  In  1765  he  was 
one  of  the  three  delegates  of  Massachusetts  to  a  Provin- 
cial Convention  held  in  New  York  and  was  chosen 
President  of  that  body. 

Joseph  Wilder,  appointed  January  21,  1762,  son  of 
Judge  Joseph  Wilder  above  noticed,  was  born  in  Lan- 
caster, Mass.,  and  sat  on  the  bench  until  his  death  in 
1773. 

Artemas  Ward,  appointed  January  21,  1762,  was  son 
of  Judge  Nahum  Ward  above  noticed,  and  was  born  in 
Shrewsbury,  Mass.,  November  27, 1727.  He  graduated 
at  Harvard  in  1748  and  engaged  in  business  pursuits. 
He  was  a  Representative  and  in  1774  was  a  member  of 
the  Council.    He  served  under  Abercrombie  against 


OF  MASSACHUSETTS. 


161 


Ticoncleroga  and  later  was  Colonel  in  the  Militia.  He 
was  a  member  of  the  first  Provincial  Congress  and  the 
first  of  three  general  officers  to  whom  the  command  of 
volunteers  was  given.  He  commanded  the  troops  about 
Boston  until  the  arrival  of  Washington,  but  soon  after 
on  account  of  ill  health  retired  from  the  service.  On 
the  17th  of  October,  1775,  he  was  appointed  by  the 
Council  Chief  Justice  of  the  Inferior  Court  for  Worces- 
ter County,  and  reappointed  March  1,  17S1,  and  again 
in  17S2,  on  the  organization  of  the  new  Court  of  Com- 
mon Pleas.  In  1778  he  was  a  member  of  the  Executive 
Council  and  in  1790  was  chosen  member  of  Congress. 
In  1786,  while  Chief  Justice,  he  distinguished  himself 
in  resisting  the  insurgents  in  Shays'  Rebellion  in  their 
attempt  to  prevent  the  session  of  his  court  in  Worces- 
ter. He  remained  on  the  bench  until  his  resignation 
in  1795,  and  died  October  28,  1800. 

Jedediah  Foster,  appointed  October  17, 1775,  received 
his  appointment  from  the  Council.  He  has  been  al- 
ready noticed  as  Judge  of  the  Superior  Court  of  Judica- 
ture. 

Moses  Gill,  appointed  by  the  Council  October  17, 1775, 
was  born  in  Charlestown,  Mass.,  in  1733,  and  engaged 
in  mercantile  pursuits  until  about  1767  when  he  re- 
moved to  Princeton,  Mass.,  and  became  Representative, 
Senator  and  Councillor.  He  was  Lieutenant  Governor 
from  1794  until  his  death,  May  20,  1800.  Governor 
Increase  Sumner  having  died  June  7,  1799,  Mr.  Gill 
became  Acting  Governor,  and  at  his  death  in  the  May 
following  the  Commonwealth  was  left  without  an  ex- 
ecutive. The  Council  of  which  Thomas  Dawes  was 
President  officiated  until  May  30,  when  Caleb  Strong 
was  inaugurated  Governor.  He  was  recomtnissioned 
as  Judge  March  1,  1781,  and  appointed  Judge  of  the 
11 


162 


JUDICIAL  HISTORY 


new  Court  of  Common  Pleas  which  was  established 
July  3,  1782. 

Joseph  Dorr,  appointed  September  19,  1776,  was  son 
of  Rev.  Joseph  Dorr,  of  Mendon,  and  graduated  at 
Harvard  in  1752.  He  was  recom missioned  March  1, 
1781,  and  was  appointed  in  1782  Judge  of  the  new 
Court  of  Common  Pleas  which  was  established  July  3 
in  that  year.  He  left  the  bench  in  1801  and  removing 
to  Brookfield  died  in  1808.  He  was  also  Judge  of  Pro- 
bate for  Worcester  County  from  1783  to  1801. 

Samuel  Baker,  appointed  October  17,  1775,  was  of 
Berlin,  Mass.,  and  was  a  Representative  and  State  Sen- 
ator. He  was  recommissioned  March  1,  1781,  and  ap- 
pointed in  1782  Judge  of  the  newly  organized  Court  of 
Common  Pleas.  He  sat  on  the  bench  until  his  death 
in  1795. 

The  narrative  of  the  Provincial  period  will  close  with 
a  record  of  the  remaining  judicial  and  court  officers  ar- 
ranged in  the  counties  where  they  served. 

The  administration  of  probate  affairs  as  has  been  al- 
ready stated  was  in  the  hands  of  the  County  Court  dur- 
ing the  colonial  period  up  to  the  accession  of  President 
Dudley  in  1686.  Dudley  assumed  the  administration, 
but  delegated  it  in  one  or  more  counties  to  officers  of 
his  own  appointment.  Under  the  administration  of 
Andros  the  Governor  attended  personally  to  the  set- 
tlement of  estates  exceeding  fifty  pounds.  After  the 
deposition  of  Andros  in  1688  the  old  method  was  re- 
sumed and  continued  until  the  charter  of  the  Province 
went  into  operation  in  1692.  During  the  Provincial 
period  there  was  no  Probate  Court  established  by  law, 
but  the  Judges  and  Registers  exercised  their  powers  un- 
der authority  derived  from  the  Governor  and  Council. 
The  following  were  the  Judges  and  Registers  of  Pro- 
bate in  the  several  counties  : 


OF  MASSACHUSETTS. 


163 


BARNSTABLE  COUNTY  JUDGES  OF  PROBATE. 

Barnabas  Lothrop,  appointed  1702 ;  John  Otis,  ap- 
pointed 1714,  1715  ;  Meletiah  Bourne,  appointed  1727, 
1729,  1731;  Sylvanus  Bourne,  appointed  1710-1,  1716, 
1762  ;  James  Otis,  appointed  1761, 1775  ;  Daniel  Davis, 
appointed  1778,  1780. 

REGISTERS  OF  PROBATE. 

William  Bassett,  appointed  1702,  1715  ;  Nathaniel 
Otis,  appointed  1721 ;  Sylvanus  Bourne,  appointed  1729, 
1731;  David  Gorham,  appointed  1710-1,  1762,  1768; 
JSTathaniel  Freemen,  appointed  1775,  1780. 

BERKSHIRE  COUNTY  JUDGES  OF  PROBATE. 

Joseph  D wight,  of  Great  Barrington,  appointed  1761 ; 
William  Williams,  of  Pittsfield,  appointed  1765  ;  Mark 
Hopkins,  appointed  September  28,  1775  ;  Timothy  Ed- 
wards, of  Stockbridge,  appointed  March  6,  1777;  Tim- 
othy Edwards,  of  Stockbridge,  appointed  February  16, 
1781. 

REGISTERS  OF  PROBATE. 

Elijah  Dwight,  appointed  1761 ;  Erastus  Sergeant, 
appointed  November  2,  1775 ;  Jahleel  Wooclbridge,  ap- 
pointed October  9,  1778  ;  William  Walker,  appointed 
February  16,  1781. 

BRISTOL  COUNTY  JUDGES  OF  PROBATE. 

Nathaniel  Byfield,  appointed  October  23,  1702  ;  Na- 
thaniel Paine,  appointed  August  21,  1710  ;  Nathaniel 
Byfield,  appointed  December  9,  1715;  Nathaniel  Bla- 
grove,  appointed  September  27,  1729  ;  Nathaniel  Hub- 
bard, appointed  April  5,  1741;  George  Leonard, 
appointed  February  16,  1747-8 ;  George  Leonard,  2d, 
appointed  November  24,  1761 ;  George  Leonard,  ap- 


164 


JUDICIAL  HISTORY 


pointed  1775,  1776;  Benjamin  Williams,  appointed 
1778,  1780. 

REGISTERS  OF  PROBATE. 

John  Carey,  appointed  1702 ;  Ebenezer  Brenton,  ap- 
pointed 1715  ;  Stephen  Paine,  appointed  1721 ;  George 
Leonard,  Jr.,  appointed  1749,  1775,  1776,  1780. 

DUKES  COUNTY  JUDGES  OF  PROBATE. 

Matthew  Mayhevv,  appointed  October  16, 1696  ;  Ben- 
jamin Skiff e,  appointed  June  22, 1710 ;  Paine  Mayhew, 
appointed  April  16,  1718  ;  Zacheus  Mayhew,  appointed 
May  4, 1733 ;  Matthew  Mayhew,  2d,  appointed  May  23, 
1761;  James  Athearne,  appointed  1775,  1780. 

REGISTERS  OF  PROBATE. 

Matthew  Mayhew,  Jr.,  appointed  October  16,  1696; 
Jabez  Athearne,  appointed  April  16,  1718;  Benjamin 
Smith,  appointed  1775,  1780;  Thomas  Cook,  appointed 
1781. 

ESSEX  COUNTY  JUDGES  OF  PROBATE. 

Bartholomew  Gedney,  appointed  1692 ;  Jonathan 
Cor  win,  appointed  1698 ;  John  Appleton,  appointed 
1702;  Thomas  Berry,  appointed  1739;  John  Choate, 
appointed  1756  ;  Nathaniel  Ropes,  appointed  1766 ;  Ben- 
jamin Lynde,  appointed  1772  ;  Benjamin  Greenleaf,  ap- 
pointed 1781. 

REGISTERS  OF  PROBATE. 

Stephen  Sewall,  appointed  1692  ;  John  Croade,  ap- 
pointed 1695;  John  Higginson,  appointed  1698  ;  Daniel 
Rogers,  appointed  1702;  Daniel  Appleton,  appointed 
1723  ;  Samuel  Rogers,  appointed  1762  ;  Peter  Frye,  ap- 
pointed 1773  ;  Daniel  Noyes,  appointed  1781. 


OF  MASSACHUSETTS. 


165 


HAMPSHIRE  COUNTY  JUDGES  OF  PROBATE. 

John  Pynchon,  appointed  June  18, 1692  ;  August  13, 
1702 ;  Samuel  Partridge,  appointed  March  18,  1702-3 ; 
December  10, 1715  ;  John  Stoddard,  appointed  July  10, 
1727 ;  December  28, 1732  ;  Timothy  D wight,  appointed 
September  27, 174S  ;  September  6,  1753  ;  June  22, 1758  ; 
June  21,  1761 ;  Israel  Williams,  appointed  June  8, 
1761 ;  Samuel  Mather,  appointed  August  28, 1775  ;  Ele- 
azer  Porter,  appointed  September  20,  1781. 

REGISTERS  OF  PROBATE. 

Samuel  Partridge,  appointed  June  18,  1692;  Au- 
gust 13, 1702  ;  John  Pynchon,  Jr.,  appointed  March  18, 
1703  ;  December  10, 1715  ;  Timothy  D  wight,  appointed 
July  10,  1729;  December  28,  1732;  Timothy  Dwight, 
Jr.,  appointed  September  27, 1748  ;  September  6,  1753  ; 
June  22,  1758  ;  June  24,  1761 ;  Solomon  Stoddard,  ap- 
pointed June  8,  1764;  Israel  Williams,  appointed  Octo- 
ber 26, 1768  ;  Caleb  Strong,  appointed  August  28, 1775  ; 
John  Chester  Williams,  appointed  September  20,  1781. 

MIDDLESEX  COUNTY  JUDGES  OF  PROBATE. 

James  Eussell,  appointed  June  18,  1692 ;  John  Lev- 
erett,  appointed  October  23,  1702;  Francis  Foxcroft, 
appointed  July  8, 170S  ;  Jonathan  Eemington,  appointed 
September  30,  1725;  Samuel  Danfortb,  appointed 
December  20,  1745 ;  John  Winthrop,  appointed  Sep- 
tember 6,  1775 ;  Oliver  Prescott,  appointed  March  27, 
1780. 

REGISTERS  OF  PROBATE. 

Samuel  Phipps,  appointed  June  18,  1692 ;  Thomas 
Swan,  appointed  October  23, 1702  ;  Xicholas  Fessenden, 
appointed  September  15,  1705 ;  Daniel  Foxcroft,  ap- 
pointed December  28,  1709 ;  Thomas  Foxcroft,  ap- 
pointed December  9,  1715  ;  Francis  Foxcroft,  appointed 


166 


JUDICIAL  HISTORY 


J uly  2, 1729 ;  Samuel  Danforth,  appointed  July  9, 1731 ; 
Andrew  Boardman,  appointed  December  20,  1745; 
Andrew  Boardman,  Jr.,  appointed  1769  ;  William  Knee- 
land,  appointed  May  29,  1769;  James  Winthrop,  ap- 
pointed September  6,  1775  ;  March  27,  1780. 

NANTUCKET  JUDGES  OF  PROBATE. 

John  Gardner,  appointed  1695;  James  Coffin,  ap- 
pointed June  6,  1706;  George  Bunker,  appointed 
June  28,  1728;  George  Gardner,  appointed  July  6, 
1732;  Jeremiah  Gardner,  appointed  September  11, 
1747;  Grafton  Gardner,  appointed  March  25,  1767; 
Grafton  Gardner,  appointed  1775. 

REGISTERS  OF  PROBATE. 

George  Gardner,  appointed  December  13,  1715; 
Eleazer  Folger,  appointed  July  6,  1732  ;  Frederick  Fol- 
ger,  appointed  January  16,  1754;  Frederick  Folger, 
appointed  1775. 

PLYMOUTH  COUNTY  JUDGES  OF  PROBATE. 

[  William    Bradford,    appointed    1693 ;  Nathaniel 

Thomas,  appointed  1702;  Isaac  Winslow,  appointed 
1718;  John  Cushing,  appointed  1739;  Edward  Wins- 
low,  1740 ;  John  Cushing,  appointed  1746;  William 
Sever,  appointed  1775 ;  Joseph  Cushing,  appointed 
1778. 

REGISTERS  OF  PROBATE. 

Samuel  Sprague,  appointed  1693;  William  Bassett, 
appointed  1700 ;  Nathaniel  Thomas,  appointed  1702; 
Josiah  Cotton,  appointed  1729 ;  John  Winslow,  ap- 
pointed 1738;  Edward  Winslow,  appointed  1756  ;  Isaac 
Lothrop,  appointed  1776. 

SUFFOLK  COUNTY  JUDGES  OF  PROBATE. 

William  Stoughton,  appointed  June  18,  1692 ;  Elisha 


OF  MASSACHUSETTS. 


167 


Cooke,  appointed  August  8, 1701 ;  Isaac  Addington,  ap- 
pointed November  19,  1702 ;  Samuel  Sewall,  appointed 
December  9,  1715 ;  Joseph  Willard,  appointed  Decem- 
ber 19,  1728 ;  November  5,  1741  ;  Edward  Hutchinson, 
appointed  February  12,  1715-6 ;  Thomas  Hutchinson, 
appointed  April  3,  1752;  November  5,  1761;  Foster 
Hutchinson,  appointed  August  3,  1769;  Thomas  Gush- 
ing, appointed  1775  ;  Oliver  Wendell,  appointed  No- 
vember 16,  1780. 

REGISTERS  OF  PROBATE. 

Isaac  Addington,  appointed  June  18, 1692  ;  Paul  Dud- 
ley, appointed  November  19,  1702 ;  Joseph  Marion,  ap- 
pointed December  19,  1715 ;  John  Boydell,  appointed 
October  19,  1722;  Benjamin  Rolfe,  appointed  October 
19,  1722;  John  Boydell,  appointed  December  15,  1732; 
Andrew  Belcher,  appointed  December  21,  1739 ;  No- 
vember 5, 1711 ;  John  Payne,  appointed  July  11, 1719  ; 
John  Shirley,  appointed  January  25, 1751 ;  John  Payne, 
appointed  September  20,  1751;  March  28,  1755;  John 
Cotton,  appointed  March  28,  1755;  William  Cooper, 
appointed  1759  ;  John  Cotton,  appointed  1759  ;  William 
Cooper,  appointed  1761;  John  Cotton,  appointed  1761; 
William  Cooper,  appointed  October  30,  1776. 

WORCESTER  COUNTY  JUDGES  OF  PROBATE. 

Joel  Chandler,  appointed  1731  ;  Joseph  Wilder,  ap- 
pointed 1740;  Joseph  Chandler,  appointed  1756;  John 
Chandler,  Jr.,  appointed  1762;  Jedediah  Foster,  ap- 
pointed 1775  ;  Artemas  Ward,  appointed  1776 ;  Levi  Lin- 
coln, appointed  1778 ;  Artemas  Ward,  appointed  June 
19,  1781. 

REGISTERS  OF  PROBATE. 

John  Chandler,  Jr.,  appointed  1731 ;  Timothy  Paine, 
Clarke  Chandler,  Joseph  Wheeler,  appointed  1775. 


CHAPTER  IV. 


COMMONWEALTH  OF  MASSACHUSETTS. 

The  last  chapter  which  professedly  brought  this  nar- 
rative down  to  the  close  of  the  Provincial  period  was 
of  necessity  extended  a  little  beyond  that  portion  of 
Massachusetts  history.  Indeed  it  is  a  little  difficult  to 
define  the  exact  line  between  the  Province  and  the 
Commonwealth.  This  is  especially  true  of  the  history 
of  the  judicial  system  for  there  was  a  transition  period 
during  which  the  courts  were  maintained  without 
change  of  name  by  neither  royal  nor  state  authority, 
but  by  an  extemporized  government  which  issued  its 
commissions  as  the  Council  "  in  the  name  of  the  Gov- 
ernment and  People  of  Massachusetts  Bay  in  New  Eng- 
land." 

The  last  session  of  the  Superior  Court  of  Judicature 
under  the  charter  was  held  in  September,  1774,  though 
Judges  were  appointed  by  royal  authority  until  Sep- 
tember, 1775,  and  the  first  session  under  the  Revolu- 
tionary regime  was  held  in  Essex  County  in  June,  1776. 
Commissions  began  to  be  issued  by  the  Council  in  the 
autumn  of  1775,  and  provisional  arrangements  were 
at  once  made  by  the  General  Court  for  various  court 
sessions.  In  February,  1776,  owing  to  the  occupation 
of  Boston  by  the  British  an  act  passed  in  February, 
1776,  provided  that  Dedham  should  be  the  shire  of  Suf- 
folk County  and  that  the  courts  for  that  county  should 
be  held  in  Dedham  and  Braintree.  The  first  Suffolk 
Countv  Court  under  that  act  was  held  in  Braintree  in 
"(168) 


OF  MASSACHUSETTS. 


169 


September,  1776,  and  the  first  court  in  Boston  after  the 
evacuation  was  held  in  February,  1777. 

In  1777  the  Council  and  House  of  Representatives 
met  in  convention  and  adopted  a  form  of  constitution 
"  for  the  State  of  Massachusetts  Bay  "  which  was  submit- 
ted to  the  people  and  rejected.  On  the  20  th  of  February, 

1779,  the  General  Court  passed  a  Resolve  calling  on  the 
qualified  voters  to  give  in  their  votes  on  the  question  ; 
whether  they  chose  to  have  a  new  constitution  made 
and  whether  they  would  empower  their  Representatives 
to  vote  for  calling  a  state  convention  for  that  purpose. 
Both  of  these  questions  were  answered  in  the  affirma- 
tive and  a  constitutional  convention  was  held  in  Cam- 
bridge on  the  first  of  September,  1779,  in  accordance 
with  a  Resolve  of  the  General  Court  passed  on  the 
seventeenth  of  June  in  that  year.  This  convention,  of 
which  James  Bowdoin  was  President  and  Samuel  Bas- 
sett,  Secretary,  adjourned  on  the  eleventh  of  Xo- 
vember  to  meet  in  Boston  on  the  fifth  of  January, 

1780.  On  the  second  of  March  a  resolution  was  passed 
to  submit  a  constitution  which  had  been  framed  to  the 
people  and  the  convention  adjourned  to  meet  in  the 
Brattle  Square  Church  in  Boston  on  the  seventh  of 
June.  At  the  adjourned  meeting  the  votes  were 
counted  and  on  the  fifteenth  of  June  the  convention  re- 
solved "  That  the  people  of  the  State  of  Massachusetts 
Bay  have  accepted  the  constitution  as  it  stands  in  the 
printed  form  submitted  to  their  revision." 

The  following  extracts  from  the  constitution  contain 
all  its  provisions  concerning  the  Judiciary  : 

"Part  1st,  Article  12.  No  subject  shall  beheld  to  an- 
swer for  any  crimes  or  offence,  until  the  same  is  fully  and 
plainly,  substantially  and  formally  described  to  him ;  or  be 
compelled  to  accuse  or  furnish  evidence  against  himself. 
And  every  subject  shall  have  a  right  to  produce  all  proofs 


170 


JUDICIAL  HISTORY 


that  may  be  favorable  to  him ;  to  meet  the  witnesses  against 
him  face  to  face,  and  to  be  fully  heard  in  his  defence  by 
himself  or  his  counsel  at  his  election,  And  no  subject  shall  be 
arrested,  imprisoned,  despoiled  or  deprived  of  his  property, 
immunities  or  privileges,  put  out  of  the  protection  of  the 
law,  exiled,  or  deprived  of  his  life,  liberty  or  estate  but  by 
the  judgment  of  his  peers,  or  the  law  of  the  land. 

"  Part  1st,  Article  14.  Every  subject  has  a  right  to  be  secure 
from  all  unreasonable  searches,  and  seizures,  of  his  person, 
his  houses,  his  papers,  and  all  his  possessions.  All  warrants 
therefore,  are  contrary  to  this  right,  if  the  cause  or  founda- 
tion of  them  be  not  previously  supported  by  oath  or  affir- 
mation, and  if  the  order  in  the  warrant  to  a  civil  officer,  to 
make  search  in  suspected  places,  or  to  arrest  one  or  more 
suspected  persons,  or  to  seize  their  property,  be  not  accom- 
panied with  a  special  designation  of  the  persons  or  objects 
of  search,  arrest  or  seizure ;  and  no  warrant  ought  to  be  is- 
sued but  in  cases  and  with  the  formalities  prescribed  by  the 
laws. 

"  Part  1st,  Article  15.  In  all  controversies  concerning  prop- 
erty and  in  all  suits  between  two  or  more  persons,  except  in 
cases  in  which  it  has  heretofore  been  otherwise  used  and 
practised,  the  parties  have  a  right  to  a  trial  by  jury ;  and 
this  method  of  procedure  shall  be  held  sacred,  unless,  in 
causes  arising  on  the  high  seas,  and  such  as  relate  to  mari- 
ners' wages,  the  legislature  shall  hereafter  find  it  necessary 
to  alter  it. 

"  Part  1st,  Article  26.  No  magistrate,  or  court  of  law  shall 
demand  excessive  bail  or  sureties,  impose  excessive  fines,  or 
inflict  cruel  or  unusual  punishments. 

"  Part  1st,  Article  29.  It  is  essential  to  the  preservation  of 
the  rights  of  every  individual,  his  life,  liberty,  property  and 
character,  that  there  be  an  impartial  interpretation  of  the 
laws  and  administration  of  justice.  It  is  the  right  of  every 
citizen  to  be  tried  by  judges  as  free,  impartial  and  independ- 
ent as  the  lot  of  humanity  will  admit.  It  is  therefore  not 
only  the  best  policy,  but  for  the  security  of  the  rights  of  the 


OF  MASSACHUSETTS. 


171 


people,  and  of  every  citizen,  that  the  Judges  of  the  Supreme 
Judicial  Court  should  hold  their  offices  as  long  as  they  be- 
have themselves  well ;  and  that  they  should  have  honorable 
salaries  ascertained  and  established  by  standing  laws. 

"Part  2d,  Chap.  1,  Sec.  1,  Article  3.  The  General  Court 
shall  forever  have  full  power  and  authority  to  erect  and 
constitute  Judicatories  and  Courts  of  Record,  or  other 
Courts,  to  be  held  in  the  name  of  the  Commonwealth,  for 
the  hearing,  trying  and  determining  of  all  manner  of  crimes, 
offences,  pleas,  processes,  plaints,  actions,  matters,  causes 
and  things  whatsoever,  arising  or  happening  within  the 
Commonwealth  or  between  or  concerning  persons  inhabiting 
or  residing  or  brought  within  the  same ;  whether  the  same 
be  criminal  or  civil,  or  whether  the  said  crimes  be  capital  or 
not  capital,  and  whether  the  said  pleas  be  real,  personal  or 
mixed ;  and  for  the  awarding  and  making  out  of  execution 
thereupon.  To  which  Courts  and  Judicatories  are  hereby 
given  and  granted  full  power  and  authority  from  time  to 
time  to  administer  oaths  or  affirmations,  for  the  better  dis- 
covering of  truth  in  any  matter  in  controversy  or  depending 
before  them. 

"  Part  2d,  Chap.  3,  Article  1 .  The  tenure,  that  all  commis- 
sion officers  shall  by  law  have  in  their  offices  shall  be  expressed 
in  their  respective  commissions.  All  judicial  officers  duly 
appointed,  commissioned  and  sworn  shall  hold  their  offices 
during  good  behavior,  excepting  such  concerning  whom  there 
is  different  provision  made  in  this  constitution ;  provided 
nevertheless  the  Governor  with  consent  of  the  Council  may 
remove  them  upon  the  address  of  both  houses  of  the  Legis- 
lature. 

"  Part  2d,  Chap.  3,  Article  2.  Each  branch  of  the  legisla- 
ture, as  well  as  the  Governor  and  Council,  shall  have  authority 
to  require  the  opinions  of  the  Justices  of  the  Supreme  Judicial 
Court  upon  important  questions  of  law,  and  upon  solemn 
occasions. 

"  Part  2d,  Chap  3,  Article  4.  The  Judges  of  Probate  of 
wills  and  for  granting  letters  of  administration  shall  hold 


172 


JUDICIAL  HISTORY 


their  courts  at  such  place  or  places  on  fixed  days  as  the 
convenience  of  the  people  shall  require ;  and  the  Legislature 
shall,  from  time  to  time,  hereafter  appoint  such  times  and 
places;  until  which  appointments  the  said  courts  shall  be 
holden  at  the  times  and  places  which  the  respective  Judges 
shall  direct. 

"Part  2d,  Chap.  6,  Article  2.  No  Governor,  Lieutenant 
Governor,  or  Judge  of  the  Supreme  Judicial  Court  shall  hold 
any  other  office  or  place  under  the  authority  of  this  Common- 
wealth except  such  as  by  this  constitution  they  are  admitted 
to  hold,  saving  that  the  Judges  of  the  said  Court  may  hold 
the  offices  of  Justices  of  the  Peace  through  the  state ;  nor 
shall  they  hold  any  other  place  or  office,  or  receive  any  pen- 
sion or  salary  from  any  other  state  or  government  or  power 
whatever.  .  .  .  No  person  holding  the  office  of  Judge  of  the 
Supreme  Judicial  Court,  Judge  of  Probate,  Register  of  Pro- 
bate, .  .  .  shall  at  the  same  time  have  a  seat  in  the  Senate 
or  House  of  Representatives.  .  .  .  (See  8th  Amendment.) 

"  Part  2d,  Chap.  6,  Article  5.  All  writs  issuing  out  of  the 
clerk's  office  in  any  of  the  courts  of  law,  shall  be  in  the  name 
of  the  Commonwealth  of  Massachusetts  ;  they  shall  be  under 
the  seal  of  the  court  from  whence  they  issue  ;  they  shall  bear 
test  of  the  first  Justice  of  the  Court  to  which  they  shall  be 
returnable,  who  is  not  a  party,  and  be  signed  by  the  Clerk 
of  such  Court. 

"  Part  2d,  Chap.  6,  Article  9.  To  the  end  that  there  may 
be  no  failure  of  justice  or  danger  arise  to  the  Commonwealth 
from  a  change  of  the  form  of  Government,  all  officers,  civil 
and  military,  holding  commissions  under  the  Government  and 
people  of  Massachusetts  Bay  in  New  England,  and  all  other 
officers  of  the  said  Government  and  people  at  the  time  this 
constitution  shall  take  effect,  shall  have,  hold,  use,  exercise 
and  enjoy  all  the  powers  and  authority  to  them  granted  or 
committed  until  other  persons  shall  be  appointed  in  their 
stead ;  and  all  courts  of  lawr  shall  proceed  in  the  execution 
of  the  business  of  their  respective  departments ;  and  all  the 
executive  and  legislative  officers,  bodies  and  powers  shall 


OF  MASSACHUSETTS. 


continue  in  full  force,  in  the  enjoyment  and  exercise  of  all 
their  trusts,  employments  and  authority,  until  the  General 
Court  and  the  supreme  and  executive  officers  under  this  con- 
stitution are  designated  and  invested  with  their  respective 
trusts,  powers  and  authority." 

It  will  be  observed  that  though  no  action  had  been, 
taken  by  the  General  Court  to  establish  any  particular 
court,  the  Constitution  names  in  three  places  the  Su- 
preme Judicial  Court  as  if  such  a  court  were  then  in 
operation.  The  court  then  in  existence  was  really  the 
Superior  Court  of  Judicature  which  in  the  Constitution 
was  made  to  assume  the  new  name  of  Supreme  Judicial 
Court  before  such  a  Court  was  really  established  by  law. 
The  new  name  having  thus  been  assumed  was  thereafter 
recognized  by  the  General  Court  and  the  people.  On 
the  21st  of  Februar}',  1781,  an  act  was  passed  entitled 
"  An  act  empowering  the  Supreme  Judicial  Court  to 
take  cognizance  of  matters  heretofore  cognizable  by  the 
late  Superior  Court,  which  provided  as  follows  : — 

"Whereas  by  the  laws  heretofore  made  by  the  General 
Assembly  of  the  late  province,  colony  and  state  of  Massa- 
chusetts Bay,  a  Superior  Court  of  Judicature,  Court  of  Assize 
and  General  Gaol  Delivery  was  constituted  and  sundry  powers 
and  authorities  are  given  to  the  same  Court  by  particular 
laws ;  And  whereas  by  the  Constitution  and  frame  of  govern- 
ment of  the  Commonwealth  of  Massachusetts  the  style  and 
title  of  the  same  Court  is  now  the  Supreme  Judicial  Court  of 
the  Commonwealth  of  Massachusetts. 

' '  And  the  Constitution  aforesaid  having  provided  that 
the  laws  heretofore  made  and  adopted  should  continue  and 
be  in  force  until  they  shall  be  altered  or  repealed  by  the  Leg- 
islature :  whence  some  doubts  may  arise  whether  the  Su- 
preme Judicial  Court  shall  have  cognizance  of  those  matters 
which  by  particular  laws  were  expressly  made  cognizable  by 
the  Superior  Court  of  Judicature,  Court  of  Assize  and  Gen- 
eral Gaol  Delivery. 


174 


JUDICIAL  HISTORY 


"  Sec.  1.  Be  it  therefore  enacted  by  the  Senate  and  House 
of  Representatives  in  General  Court  assembled  and  by  the 
authority  of  the  same,  that  the  court  which  hath  been,  or 
shall  be  hereafter  appointed  and  commissioned  according  to 
the  Constitution  as  the  Supreme  Judicial  Court  of  the  Com- 
monwealth, shall  have  cognizance  of  all  such  matters,  as 
have  heretofore  happened,  or  that  shall  hereafter  happen,  as 
by  particular  laws  were  made  cognizable  by  the  late  Supe- 
rior Court  of  Judicature,  Court  of  Assize  and  General  Gaol 
Delivery,  unless,  where  the  Constitution  and  frame  of  gov- 
ernment hath  provided  otherwise." 

On  the  3d  of  July,  1782,  an  Act  was  passed  entitled 
"  An  Act  establishing  a  Supreme  Judicial  Court  within 
the  Commonwealth  "  and  as  this  act  is  the  foundation 
on  which  that  Court  rests  it  will  be  quoted  in  full  and 
is  as  follows : 

"  Sec.  1.  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives in  General  Court  assembled,  and  by  the  au- 
thority of  the  same,  that  there  shall  be  a  Supreme  Judicial 
Court  within  this  Commonwealth,  to  be  held  and  kept  at  the 
several  times  and  places  bylaw  appointed,  by  one  Chief  Jus- 
tice and  four  other  Justices,  each  of  whom  shall  be  an  in- 
habitant of  this  Commonwealth,  of  sobriety  of  manners  and 
learned  in  the  law,  to  be  appointed  and  commissioned  as  is 
by  the  Constitution  provided;  and  they  or  any  three  of 
them  shall  be  a  Court  and  have  cognizance  of  pleas  real, 
personal  and  mixed  ;  and  of  all  civil  actions  between  party 
and  party,  and  between  the  Commonwealth  and  any  of  the 
subjects  thereof,  whether  the  same  do  concern  the  realty, 
and  relate  to  right  of  freehold,  inheritance  or  possession; 
whether  the  same  do  concern  the  personalty  and  relate  to  any 
matter  of  debt,  contract,  damage  or  personal  injury ;  and 
also  all  mixed  actions  which  do  concern  the  realty  and  per- 
sonalty brought  legally  before  the  same  Supreme  Judicial 
Court  by  appeal,  review,  writ  of  error  or  otherwise ;  and  in 


OF  MASSACHUSETTS. 


175 


all  such  actions  real,  personal  and  mixed,  to  give  such  judg- 
ment and  award  such  execution,  as  the  common  rules  of  jus- 
tice and  laws  of  this  Commonwealth  shall  direct ;  and  shall 
take  cognizance  of  all  capital  and  other  offences  and  mis- 
demeanors whatsoever,  of  a  public  nature  tending  either  to 
a  breach  of  the  peace,  or  the  oppression  of  the  subject,  or 
raising  of  faction,  controversy  or  debate,  to  any  manner  of 
misgovernment ;  and  of  every  crime  whatsoever  that  is 
against  the  public  good ;  and  shall  by  virtue  of  their  office 
be  severally  conservators  of  the  peace  throughout  the  Com- 
monwealth. And  upon  all  persons  duly  and  legally  convicted 
before  the  said  court  of  crimes,  offences  or  misdemeanors, 
to  inflict  such  punishment  as  by  the  laws  of  the  Common- 
wealth is  provided.  And  in  case  of  legal  conviction,  where 
no  punishment  by  statute  law  is  provided,  then  the  said 
Court  shall  punish  the  person  so  convicted,  and  according 
to  the  common  usage  and  practice  within  this  Commonwealth 
not  repugnant  to  the  Constitution,  according  to  the  nature 
of  the  offence. 

"  Sec.  2.  And  be  it  further  enacted  that  the  same  Su- 
preme Judicial  Court  may  by  certiorari  or  other  legal  methods, 
cause  to  be  brought  before  them  as  well  indictments  or  other 
criminal  prosecutions  pending  in,  as  the  records  of  sentences, 
orders,  decrees  and  judgments  of  any  court  of  inferior 
criminal  jurisdiction,  and  to  proceed,  order  and  award  thereon, 
as  shall  be  by  law  provided  and  directed.  And  the  said  Su- 
preme Judicial  Court  is  empowered  to  impose  and  administer 
all  oaths,  as  well  those  that  are  necessary  for  promoting  jus- 
tice between  party  and  party  as  those  necessary  to  the  con- 
viction and  punishment  of  offenders ;  and  to  punish  at  the 
reasonable  discretion  of  the  Court  all  contempts  committed 
against  the  authority  of  the  same ;  and  the  said  Court  shall 
have  power  to  issue  all  writs  of  prohibition  and  mandamus, 
according  to  the  law  of  the  land,  to  all  courts  of  inferior 
judiciary  powers,  and  all  processes  necessary  to  the  further- 
ance of  justice  and  the  regular  execution  of  the  laws. 

"Sec.  3.  And  it  is  further  enacted  that  all  writs  and 


176 


JUDICIAL  HISTORY 


processes  of  the  same  Court  shall  be  in  the  name  of  the  Com- 
monwealth of  Massachusetts,  bear  test  of  the  first  justice 
who  is  not  a  party  to  the  suit,  and  shall  be  under  the  seal 
of  the  same  Court  and  signed  by  the  Clerk. 

"  Sec.  4.  And  it  is  further  enacted,  That  the  same  Supreme 
Judicial  Court  shall  and  may  from  time  to  time,  make  record 
and  establish  all  such  rules  and  regulations  with  respect  to 
the  admission  of  Attorneys  ordinarily  practicing  in  the  said 
court,  and  the  creating  of  Barristers  at  Law,  and  all  other 
rules  respecting  modes  of  trial  and  the  conduct  of  business, 
as  the  discretion  of  the  same  court  shall  dictate.  Provided 
always,  That  such  rules  and  regulations  be  not  repugnant  to 
the  laws  of  the  Commonwealth. 

"  Sec.  5.  And  it  is  further  enacted,  That  the  Justices  of  the 
said  Supreme  Judicial  Court,  or  any  three  of  them,  shall  be 
empowered  to  adjourn  the  same  court  from  time  to  time,  as 
may  be  necessary  to  the  public  good.  And  when  it  shall  so 
happen,  that  any  of  the  Justices  of  the  said  court  shall  prov- 
identially be  detained  from  attending  at  the  time  when  the 
same  court  by  law  or  by  any  previous  adjournment  is  to  be 
held,  by  means  whereof  there  cannot  be  a  competent  court, 
any  two  Justices  of  the  same  court  may  by  writ  under  their 
hands  and  seals,  adjourn  the  same  court  to  such  further  day 
as  shall  be  expressed  in  the  same  writ ;  and  the  sheriff  of 
the  county  or  his  deputy  shall  read  such  writ  audibly  in  the 
court  house,  or  place  where  the  court  was  to  be  holden, 
and  post  up  an  attested  copy  thereof  in  some  public  and  con- 
spicuous place  there,  and  shall  cause  publication  to  be  made 
of  the  same  in  some  other  of  the  most  public  places  in  the 
county,  and  the  Justices  of  the  Supreme  Judicial  Court  shall 
from  time  to  time  appoint  a  clerk  or  clerks  to  attend  said 
court  and  record  the  proceedings  thereof,  and  to  do  all  other 
things  which  shall  be  by  law  their  duty  to  do  ;  Which  clerk 
or  clerks  shall  be  duly  sworn  to  the  faithful  performance  of 
their  office,  and  shall  hold  the  same  during  the  pleasure  of 
said  court. 


OF  MASSACHUSETTS. 


177 


A  subsequent  act  passed  March  12,  1781,  gave  to  the 
Supreme  Court  appellate  jurisdiction  in  all  matter  de- 
termined by  Judges  of  Probate  in  their  respective  coun- 
ties, and  an  act  passed  March  16,  1786,  conferred  upon 
it  jurisdiction  in  all  questions  of  divorce  and  alimony. 
Up  to  March  11,  1797,  the  Clerk  of  the  Supreme  Judi- 
cial Court  had  his  office  in  Boston,  but  on  that  date  an 
act  was  passed  providing  that  the  Clerk  of  the  Common 
Pleas  Court  in  each  county  should  be  also  Clerk  of  the 
Supreme  Judicial  Court,  with  the  exception  of  the  Clerk 
in  each  of  the  following  counties :  Lincoln,  Hancock, 
"Washington,  Dukes  County  and  Nantucket,  and  that 
the  Clerk  of  the  Supreme  Court  in  Boston  should  be 
Clerk  for  Nantucket,  and  the  Clerk  of  Barnstable 
County  should  be  also  Clerk  for  Dukes  County. 

On  the  27th  of  February,  1790,  the  salary  of  the 
Chief  Justice  was  fixed  at  £370,  and  that  of  the  Asso- 
ciates at  £350,  without  any  fee  or  perquisite.  In  1806 
the  salaries  were  fixed  at  $2,500  for  the  Chief  Justice 
and  $2,100  for  the  Associates,  and  in  1809,  $3,500  for 
the  Chief  and  $3,000  for  the  Associates.  In  1813  the 
salaries  were  reduced  to  $3,000  and  $2,500,  and  in  1811 
the  old  salaries  were  restored  with  additions  retroacting 
to  the  date  of  the  reduction.  In  1856  the  salaries  were 
fixed  at  $1,500  and  $1,000,  in  1872  to  $6,500  and  $6,000, 
in  1888  the  same,  with  the  addition  of  $500  for  travel- 
ling expenses,  in  1892  at  $7,500  and  $6,500  with  $500  for 
travelling  expenses,  and  in  1900  at  $8,500  and  $8,000 
with  $500  for  travelling  expenses.  In  1899  a  law  was 
passed  as  a  substitute  for  laws  passed  in  1885  and  1887, 
providing  that  a  Judge  serving  in  either  or  both  the 
Supreme  Judicial  and  Superior  Courts  at  least  ten  consec- 
utive years,  and  shall  resign  after  he  reaches  the  age  of 
seventy  years,  shall  be  entitled  to  receive  three  quarters 
of  the  annual  salary  during  his  life,  and  that  he  may 
12 


178 


JUDICIAL  HISTORY 


resign  with  the  approval  of  the  Governor  and  Council 
at  the  age  of  sixty  years  after  fifteen  years'  consecutive 
service  in  either  or  both  courts,  and  be  entitled  to  re- 
ceive during  his  life  three  quarters  of  the  salary. 

The  number  of  Associate  Justices  was  increased  to 
six  in  1800.  In  1805  the  number  of  Associates  was  re- 
duced to  four,  and  in  1852  one  more  was  added.  In 
1873  the  number  was  increased  to  six  and  has  so  re- 
mained up  to  the  present  time. 

The  jurisdiction  of  the  Supreme  Judicial  Court  has 
been  repeatedly  changed,  the  most  recent  changes  hav- 
ing been  the  transfer  in  1887  of  jurisdiction  in  matters 
of  divorce  and  alimony  to  the  Superior  Court,  the  trans- 
fer in  1891  to  the  same  court  of  capital  trials  and  in  the 
same  year  giving  to  that  court  concurrent  jurisdiction 
in  matters  relating  to  telegraph  and  telephone  wires,  in 
matters  relating  to  the  abuse  by  towns  of  corporate 
powers,  relating  to  the  construction,  alteration,  main- 
tenance and  use  of  buildings,  and  relating  to  the  con- 
trol of  street  railways. 

The  following  is  a  list  of  appointments  to  the  bench 
of  the  Supreme  Judicial  Court  since  its  establishment 
on  the  3d  of  July,  1782. 

CHIEF  JUSTICES. 

Nathaniel  Peaslee  Sargeant,  appointed  1790,  died 
1791 ;  Francis  Dana,  appointed  1791,  resigned  1806 ; 
Theophilus  Parsons,  appointed  1806,  died  1813 ;  Sam- 
uel Sewall,  appointed  1814,  died  1814  ;  Isaac  Parker,  ap- 
pointed 1814,  died  1830 ;  Lemuel  Shaw,  appointed  1830, 
resigned  1860  ;  George  Tyler  Bigelow,  appointed  1860, 
resigned  1868 ;  Reuben  Atwater  Chapman,  appointed 
1868,  died  1873  ;  Horace  Gray,  appointed  1873,  resigned 
1882  ;  Marcus  Morton,  appointed  1882,  resigned  1890 ; 


OF  MASSACHUSETTS. 


179 


Walbridge  Abner  Field,  appointed  1890,  died  1899; 
Oliver  Wendell  Holmes,  appointed  1899. 

ASSOCIATE  JUSTICES. 

Increase  Sumner,  appointed  1782,  resigned  1797 ; 
Francis  Dana,  appointed  1785,  Chief  Justice  1791 ;  Rob- 
ert Treat  Paine,  appointed  1790,  resigned  1804;  Nathan 
Cushing,  appointed  1790,  resigned  1800;  Thomas 
Dawes,  appointed  1792,  resigned  1802;  Theophilus 
Bradbury,  appointed  1797,  removed  1803  ;  Samuel  Sew- 
all,  appointed  1800,  Chief  Justice  1811 ;  Simeon  Strong, 
appointed  1801,  died  1805  ;  George  Thacher,  appointed 

1801,  resigned  1821;  Theodore  Sedgwick,  appointed 

1802,  died  1813;  Isaac  Parker,  appointed  1806,  Chief 
Justice  1811 ;  Charles  Jackson,  appointed  1813,  resigned 
1823;  Daniel  Dewey,  appointed  1811,  died  1815;  Sam- 
uel Putman,  appointed  1811,  resigned  1812;  Samuel 
Sumner  Wilde,  appointed  1815,  resigned  1850  ;  Levi  Lin- 
coln, appointed  1821,  resigned  1825  ;  Marcus  Morton, 
appointed  1S25,  resigned  1810 ;  Charles  Augustus 
Dewey,  appointed  1837,  died  18G6 ;  Samuel  Hubbard,  ap- 
pointed 1812,  died  1817 ;  Charles  Edward  Forbes,  ap- 
pointed 1818,  resigned  1818  ;  Theron  Metcalf,  appointed 
1848,  resigned  1865  ;  Richard  Fletcher,  appointed  1848, 
resigned  1853  ;  George  Tyler  Bigelow,  appointed  1850, 
Chief  Justice  1860 ;  Caleb  Cushing,  appointed  1852,  re- 
signed 1853 ;  Benjamin  Franklin  Thomas,  appointed 
1S53,  resigned  1859  ;  Pliny  Merrick,  appointed  1853, 
resigned  1861 ;  Ebenezer  Rock  wood  Hoar,  appointed 
1859,  resigned  1869 ;  Reuben  Atwater  Chapman,  ap- 
pointed 1860,  Chief  Justice  1868 ;  Horace  Gray,  ap- 
pointed 1864,  Chief  Justice  1873  ;  James  Denison  Colt, 
appointed  1865,  resigned  1866 ;  D  wight  Foster,  appointed 
1866,  resigned  1869 ;  John  Wells,  appointed  1866,  died 
1875 ;  James  Denison  Colt,  appointed  1868,  died  1881 ; 


180 


JUDICIAL  HISTORY 


Seth  Ames,  appointed  1869,  resigned  1881 ;  Marcus 
Morton,  Jr.,  appointed  1869,  Chief  Justice  1882 ;  Win. 
Crowninshield  Endicott,  appointed  1873,  resigned  1882; 
Charles  Devens,  appointed  1873,  resigned  1877 ;  Otis 
Phillips  Lord,  appointed  1875,  resigned  1882  ;  Augustus 
Lord  Soule,  appointed  1877,  resigned  1881 ;  Walbridge 
Abner  Field,  appointed  1881,  Chief  Justice  1890; 
Charles  Devens,  appointed  1881,  died  1891;  William 
Allen,  appointed  1881,  died  1891 ;  Charles  Allen,  ap- 
pointed 1882,  resigned  1898  ;  Waldo  Colburn,  appointed 
1882,  died  1885 ;  Oliver  Wendell  Holmes,  appointed 
1882,  Chief  Justice  1899  ;  William  Sewall  Gardner,  ap- 
pointed 1885,  resigned  1887 ;  Marcus  Perrin  Knowlton, 
appointed  1887 ;  James  Madison  Morton,  appointed 
1890;  John  Lathrop,  appointed  1891;  James  Madison 
Barker,  appointed  1891  ;  John  Wilkes  Hammond,  ap- 
pointed 1898  ;  William  Caleb  Loring,  appointed  1899. 

The  following  are  such  notices  of  the  Judges  of  this 
court  as  the  writer  finds  room  for  in  this  narrative : 

Nathaniel  Peaslee  Sargeant  has  already  been  noticed 
as  a  Judge  of  the  Superior  Court  of  Judicature. 

Francis  Dana  has  already  been  noticed  as  a  Barrister. 

Theophilus  Parsons  has  been  noticed  as  a  Barrister. 

Samuel  Sewall  was  born  in  Boston,  December  11, 
1757,  and  graduated  at  Harvard  in  1776.  He  settled 
in  Marblehead,  from  which  town  he  was  a  Representa- 
tive to  the  General  Court  and  he  was  also  a  member  of 
Congress  from  1797  to  1800.  He  was  appointed  Asso- 
ciate Justice  in  1800,  Chief  Justice  in  1814,  and  died  at 
Wiscasset,  Maine,  June  8,  1814. 

Isaac  Parker  was  descended  from  John  Parker,  who 
came  from  Biddeford,  England,  to  Saco,  Maine,  and  in 
1650  bought  the  Island  in  the  Kennebec  River,  called 
Parker's  Island,  and  there  died  in  1661.  Judge  Parker 
was  born  in  Boston,  June  17,  1768,  and  graduated  at 


OF  MASSACHUSETTS, 


181 


Harvard  in  17S6.  He  studied  law  with  William  Tudor 
and  was  admitted  to  the  Suffolk  bar  in  1789.  He  set- 
tled first  in  Castine,  Maine,  was  a  Representative  in 
1791-3-4-5,  member  of  Congress  from  1797  to  1799 
and  United  States  Marshal  from  1799  to  1801.  He  was 
eleven  years  trustee  of  Bowdoin  College,  twenty  years 
an  Overseer  of  Harvard  and  Royal  Professor  of  Law 
at  the  Harvard  Law  School  from  1816  to  1S27,  receiv- 
ing a  degree  of  LL.  D.  from  Harvard  in  1814.  He  was 
appointed  Associate  Justice  of  the  Supreme  Judicial 
Court  in  1806  and  Chief  Justice  in  1814,  serving  until 
his  death.  May  26,  1830. 

Lemuel  Shaw,  son  of  Oakes  and  Susannah  (Hayward) 
Shaw,  was  born  in  Barnstable,  Mass.,  January  9,  1781, 
and  graduated  at  Harvard  in  1800,  having  been  fitted 
for  college  by  his  father  and  Rev.  William  Salisbury 
of  Braintree.  After  leaving  college  he  was  Usher  in 
the  Franklin  (Brimmer)  School,  under  Dr.  Asa  Bullard, 
principal  and  assistant  editor  of  the  Boston  Gazette. 
In  1S01  he  entered  as  a  student  the  law  office  of  David 
Everett,  of  Boston,  and  after  a  further  course  of  study 
in  Boston  and  Amherst,  N.  H.,  he  was  admitted  to  the 
bar  in  Hopkinton,  X.  H.,  in  September,  1S04.  He  was 
afterwards  in  November  of  the  same  year  admitted  to 
the  Massachusetts  bar  at  Plymouth  and  settled  in  Bos- 
ton. He  was  a  Representative  in  1811-12-13-14-15 
a  member  of  the  State  Constitutional  Convention  of 
1820,  Senator  in  1821-22  and  28-29,  and  wrote  the  Act 
incorporating  the  city  of  Boston,  with  the  exception  of 
the  section  relating  to  public  theatres  and  exhibitions  and 
the  section  establishing  the  Police  Court  of  Boston, 
which  were  drafted  by  William  Sullivan.  He  was  a 
member  of  the  Boston  Library  Society,  the  Humane 
Society,  the  Massachusetts  Historical  society,  the  Soci- 
ety for  the  propagation  of  the  gospel  among  the  Indians 


182 


JUDICIAL  HISTORY 


in  North  America  and  the  Academy  of  Arts  and  Sci- 
ences, a  member  of  the  Board  of  Overseers  of  Harvard 
University  twelve  years,  and  one  of  the  corporation  of 
Harvard  twenty-seven  years.  On  the  23d  of  August, 
1830,  he  was  appointed  Chief  Justice  of  the  Supreme 
Judicial  Court,  and  resigned  August  31,  1860.  He  re- 
ceived the  degree  of  LL.  D.  from  Harvard  in  1831,  and 
from  Brown  in  1850.  He  married  first  January  6, 1818, 
Elizabeth,  daughter  of  Joseph  Knapp  of  Boston,  and 
second  in  August,  1827,  Hope,  daughter  of  Dr.  Samuel 
Savage  of  Barnstable,  and  died  in  Boston  March  30, 
1861. 

George  Tyler  Bigelow,  son  of  Tyler  and  Clara, 
daughter  of  Colonel  Timothy  Bigelow  of  Boston,  was 
born  in  Watertown,  Mass.,  October  6,  1810,  and  grad- 
uated at  Harvard  in  1829.  After  leaving  college  he 
was  tutor  in  the  family  of  Henry  Vernon  Somerville 
at  Bloomsbur}',  Md.,  and  after  reading  law  with  his 
father  was  admitted  to  the  Middlesex  County  bar  in 
December,  1833,  after  a  further  short  period  of  study 
in  the  office  of  Charles  G.  Loring  of  Boston.  He  began 
practice  in  Watertown  but  in  1835  removed  to  Boston 
where  he  acquired  a  fondness  for  military  life,  and  iti 
May,  1837,  joined  the  New  England  Guards,  becoming 
Ensign  and  Captain  and  later  Colonel  of  the  Boston 
Regiment.  In  1843  he  formed  a  partnership  with  Man- 
lius  S.  Clarke  and  in  1841  defended  Abner  Rogers  in- 
dicted for  the  murder  of  the  warden  of  the  State  Prison 
whose  acquittal  he  secured  on  the  ground  of  insanity. 
He  was  both  Representative  and  Senator,  and  in  1848 
was  appointed  Judge  of  the  Common  Pleas  Court.  In 
1850  he  was  appointed  Associate  Justice  of  the  Supreme 
Judicial  Court  and  in  1860  Chief  Justice.  He  resigned 
in  1868  and  became  Actuary  of  the  Massachusetts  Hos- 
pital Life  Insurance  Company,  serving  until  his  death, 


OF  MASSACHUSETTS. 


183 


April  12,  1878.  He  married,  November  5, 1839,  Anna, 
daughter  of  Edward  Miller  of  Quincy,  Mass.  He  re- 
ceived a  degree  LL.  D.  from  Harvard  in  1853. 

Reuben  Atwater  Chapman,  the  son  of  a  farmer,  was 
born  in  Russell,  Mass.,  September  20,  1801.  He  was 
first  a  clerk  in  a  store  in  Blandford  and  after  studying 
law  in  that  town  was  admitted  to  the  bar  and  practiced 
in  Westfield,  Monson,  Ware  and  Springfield,  in  which 
last  place  he  was  associated  with  George  Ashmun.  He 
was  appointed  Associate  Justice  of  the  Supreme  Judi- 
cial Court  in  1860  and  Chief  Justice  in  1868,  serving 
until  his  death  which  occurred  in  Fluellen,  Switzerland, 
June  28,  1873.  He  received  the  degree  of  Master  of 
Arts  from  Williams  in  1836  and  Amherst  in  1841,  and 
the  degree  of  LL.  D.  from  Amherst  in  1861  and  Har- 
vard in  1861. 

Horace  Gray,  son  of  Horace,  was  born  in  Boston  in 
1828  and  graduated  at  Harvard  in  1845  and  from  the 
Harvard  Law  School  in  1849.  He  was  admitted  to  the 
Suffolk  bar  February  14,  1851,  and  in  1854  was  ap- 
pointed reporter  of  the  decisions  of  the  Supreme  Judicial 
Court.  His  reports  are  contained  in  sixteen  volumes 
covering  the  period  from  the  Suffolk  and  Nantucket 
term  in  1854  to  the  Suffolk  term  in  November,  1860. 
In  1864  he  was  appointed  Associate  Justice  and  in  1873 
Chief  Justice.  In  1882  he  was  made  Associate  Justice 
of  the  United  States  Supreme  Court  and  is  still  on  the 
bench. 

Marcus  Morton,  Jr.,  son  of  Judge  Marcus  and  Char- 
lotte (Hodges)  Morton,  was  born  in  Taunton,  Mass., 
April  8,  1819,  and  graduated  at  Brown  University  in 
1838  and  at  the  Harvard  Law  School  in  1840.  After 
completing  his  law  studies  in  the  office  of  Peleg  Sprague 
and  William  Gray  in  Boston,  he  was  admitted  to  the 
Suffolk  bar,  July  12,  1841.    In  1850  he  took  up  his 


184 


JUDICIAL  HISTORY 


residence  in  Andover  with  his  office  in  Boston  and  in 
1853  represented  Andover  in  the  State  Constitutional 
Convention  and  in  1858  in  the  House  of  Representa- 
tives. In  1858  he  was  appointed  Judge  of  the  Superior 
Court  of  Suffolk  and  remained  on  the  bench  until  the 
abolition  of  that  court  in  1859.  In  1859  he  was  ap- 
pointed Judge  of  the  newly  organized  Superior  Court 
and  continued  to  serve  until  April  15,  1869,  when  he 
was  appointed  an  Associate  Justice  of  the  Supreme  Ju- 
dicial Court.  On  the  16th  of  January,  1882,  he  was 
appointed  Chief  Justice,  and  on  the  27th  of  August, 
1890,  resigned.  He  married  Abby  B.,  daughter  of 
Henry  and  Amy  (Harris)  Hoppin  of  Providence,  and 
died  in  Andover,  February  10,  1891. 

"Walbridge  Abner  Field,  son  of  Abner  and  Louisa 
Griswold  Field,  was  born  in  Springfield,  Yt.,  April  26, 
1833,  and  graduated  at  Dartmouth  in  1855.  He  was  a 
tutor  at  Dartmouth  in  1856  and  1857  and  1859.  He 
studied  law  in  the  Harvard  Law  School  and  in  the  office 
of  Harvey  Jewell  in  Boston,  and  was  admitted  to  the 
Suffolk  bar  May  12,  1860.  In  1865  he  was  appointed 
Assistant  United  States  District  Attorney  and  served 
until  1869,  when  he  was  appointed  Assistant  Attorney 
General  of  the  United  States.  He  returned  to  Boston 
in  1870  and  resumed  practice  with  Harvey  Jewell  and 
William  Gaston  under  the  firm  name  of  Jewell,  Gaston 
and  Field.  In  1881  he  was  appointed  Judge  of  the  Su- 
preme Judicial  Court,  and  in  1890  Chief  Justice,  serv- 
ing until  his  death  in  Boston  July  15,  1899.  He  was  a 
member  of  the  Forty-sixth  Congress.  He  married, 
first,  in  1869,  Eliza  E.  McLoon,  and  second,  in  1882, 
Frances  E.,  daughter  of  Nathan  A.  Farwell,  of  Rock- 
land, Maine. 

Oliver  Wendell  Holmes,  son  of  Oliver  Wendell  and 
Amelia  Lee  (Jackson)  Holmes,  was  born  in  Boston 


OF  MASSACHUSETTS. 


185 


March  8,  1841,  and  graduated  at  Harvard  in  1861.  He 
served  in  the  war  of  1861  as  First  Leutenant  in  the  20th 
Massachusetts  infantry,  and  afterwards  as  Lieutenant 
Colonel  and  Brevet  Colonel,  and  was  wounded  at  Balls 
Bluff,  Antietam  and  Fredericksburg.  He  graduated  at 
the  Harvard  Law  School  in  1S66,  and  after  further 
study  in  the  office  of  Robert  M.  Morse  and  George  O. 
Shattuck  in  Boston  he  was  admitted  to  the  Suffolk  bar 
March  4,  1867.  His  lectures  at  the  Lowell  Institute 
upon  the  common  law  established  his  reputation,  and 
in  1882  he  was  appointed  Professor  in  the  Harvard  Law 
School.  In  the  same  year  he  was  appointed  Associate 
Justice  of  the  Supreme  Judicial  Court,  and  in  1899  Chief 
Justice.  In  1886  he  received  the  degree  of  LL.  D.  from 
Yale.  He  married,  June  17,  1872,  Fanny  Bowditch, 
daughter  of  Epes  Sargent  Dixwell. 

Increase  Sumner,  son  of  Increase  Sumner  of  Box- 
bury,  was  born  in  that  town  November  27,  1746,  and 
graduated  at  Harvard  in  1767.  After  teaching  school 
he  studied  law  with  Samuel  Quincy  in  Boston,  and  was 
admitted  to  the  Suffolk  bar  in  1770.  He  settled  in  Box- 
bury,  was  Representative  from  1776  to  1780,  Senator 
from  1780  to  1782,  and  in  the  latter  year  was  appointed 
to  the  bench  of  the  Supreme  Judicial  Court.  He  served 
until  chosen  Governor  in  1797,  and  while  holding  the 
latter  office  died  June  7,  1799.  He  married,  Septem- 
ber 29,  1779,  a  daughter  of  William  Hyslop,  of  Brook- 
line. 

Robert  Treat  Paine,  son  of  Thomas  and  Eunice 
(Treat)  Paine,  was  born  in  Boston,  March  11, 1731,  and 
graduated  at  Harvard  in  1749,  receiving  the  degree  of 
LL.  D.  from  his  alma  mater  in  1805.  His  father  was 
at  one  time  pastor  of  a  church  in  Weymouth  and  later  a 
merchant  in  Boston.  Judge  Paine  after  leaving  college, 
taught  school  for  a  time  and  afterwards  made  three 


186 


JUDICIAL  HISTORY 


voyages  as  master  to  North  Carolina  and  one  to  Green- 
land for  whales.  He  studied  for  the  ministry  and  in 
1755  served  as  Chaplain  in  the  French  war.  He  finally 
studied  law  with  Judge  Willard  of  Lancaster,  and  with 
Benjamin  Pratt  of  Boston,  and  was  admitted  to  the 
Suffolk  bar  in  1759.  He  first  settled  in  Boston  and 
then  in  Taunton,  which  town  in  1769  he  represented  in 
the  General  Court.  In  1770  he  conducted  the  prosecu- 
tion of  Captain  Preston  in  the  Boston  massacre  trial  in 
the  absence  of  the  Attorney  General  and  1771-5  was  a 
delegate  to  the  Provincial  Congress.  From  1771  to  1778 
he  was  a  member  of  the  Continental  Congress  and  in 
1777  was  Speaker  of  the  House  of  Representatives.  He 
was  appointed  Attorney  General  during  the  Revolution 
and  held  office  until  1790.  In  1776  he  declined  an  ap- 
pointment to  the  bench  of  the  Superior  Court  of  Judi- 
cature and  in  1779  was  a  member  of  the  State  Consti- 
tutional Convention.  About  1T80  he  removed  to  Boston 
and  in  1790  was  appointed  to  the  bench  of  the  Su- 
preme Judicial  Court  which  office  he  resigned  in  1801. 
He  will  be  always  remembered  as  a  signer  of  the 
Declaration  of  Independence.  He  married  in  1770, 
Sally,  daughter  of  Thomas  Cobb,  of  Taunton,  and  died 
in  Boston,  May  11,  1811. 

Nathan  Cushing  was  born  in  Scituate,  Mass.,  Sep- 
tember 21,  1742,  and  graduated  at  Harvard  in  1763. 
He  was  appointed  to  the  Supreme  Judicial  Court  in 
1790  and  resigned  in  1800.  He  died  at  Scituate,  No- 
vember 2,  1812. 

Thomas  Dawes,  son  of  Col.  Thomas,  was  born  in 
Boston,  July  8,  1758,  and  graduated  at  Harvard  in 
1777.  He  studied  law  with  John  Lowell  in  Boston, 
and  was  admitted  to  the  Suffolk  bar  in  1780.  He  was 
appointed  in  1790  Judge  of  Probate  for  Suffolk  County 
and  in  1792  Judge  of  the  Supreme  Judicial  Court.  He 


OF  MASSACHUSETTS. 


187 


resigned  in  1802  and  was  again  appointed  Judge  of 
Probate  holding  office  until  his  death,  July  22,  1825. 
He  was  also  appointed  in  1802  Judge  of  the  "  Munic- 
ipai  Court  in  the  town  of  Boston,"  and  held  that  office 
until  succeeded  by  Josiah  Quincy,  January  16,  1822. 

Theophilus  Bradbury  has  been  noticed  as  a  Barrister 
but  as  the  statement  in  the  Legislative  Manual  that  he 
was  removed  from  the  bench  may  be  misunderstood,  an 
explanation  is  due  to  that  learned  and  incorruptible 
judge.  He  became  paralyzed  in  February,  1S02,  and 
his  disability  continuing  for  more  than  a  year  without 
hope  of  recovery,  he  was  removed  by  the  Governor  and 
Council  upon  the  address  of  both  houses  of  the  Legisla- 
ture. 

Simeon  Strong  has  been  noticed  as  a  Barrister. 

George  Thacher,  son  of  Peter,  was  born  in  Yarmouth,. 
Mass.,  April  12,  1751,  and  graduated  at  Harvard  in 
1776.  He  studied  law  with  Shearjashub  Bourne,  in 
Barnstable  and  was  admitted  to  the  bar  in  1778.  He 
practiced  in  York  and  Biddeford,  Maine,  and  was  a. 
member  of  Congress  from  1788  to  1801  as  well  as  a 
District  Judge  in  Maine.  In  1801  he  was  appointed  to 
the  Supreme  Judicial  Court  and  resigned  in  1821.  He 
was  a  member  of  the  convention  in  1819  which  framed 
the  constitution  of  Maine.  He  married  Mary,  daughter 
of  Samuel  Phillips  Savage,  of  TVeston,  Mass.,  and  died 
in  Biddeford,  Maine,  April  6,  1821. 

Theodore  Sedgwick  has  been  noticed  as  a  Barrister. 

Charles  Jackson,  son  of  Jonathan,  was  born  in  New- 
buryport,  Mass.,  May  31,  1775,  and  graduated  at  Har- 
vard in  1793.  He  studied  law  with  Theophilus  Parsons 
and  was  admitted  to  the  Essex  County  bar  in  1796. 
In  1S03  he  removed  to  Boston  and  formed  a  partner- 
ship with  Samuel  Hubbard.    He  was  appointed  to  the 


188 


JUDICIAL  HISTORY 


Supreme  Judicial  Court  in  1813,  resigned  in  1824  and 
died  in  Boston  December  13,  1855. 

Daniel  Dewey  was  born  in  Sheffield,  Mass.,  Janu- 
ary 29,  1766,  and  after  studying  law  with  Theodore 
Sedgwick  settled  in  1787,  in  Williamstown,  Mass.  He 
was  a  member  of  the  Council,  member  of  Congress  in 
1813-14  and  served  as  Judge  of  the  Supreme  Judicial 
Court  from  his  appointment  in  1814  till  his  death 
May  26,  1815. 

Samuel  Putnam  was  born  in  Danvers,  Mass.,  April  13, 
1768,  and  graduated  at  Harvard  in  1787.  He  began 
practice  in  Salem  in  1790,  was  State  Senator  in  1808,  '9, 
'13,  '14.  Representative  in  1812  and  Judge  of  the 
Supreme  Judicial  Court  from  1814  to  1842.  He  died 
at  Somerville  July  3,  1853. 

Samuel  Sumner  Wilde  was  born  in  Taunton,  Mass., 
February  5,  1771,  and  graduated  at  Dartmouth  in 
1789.  He  studied  law  with  Judge  Pacldleford  in 
Taunton  and  was  admitted  to  the  bar  in  1792.  He 
began  practice  in  Waldoboro,  Maine,  but  moved  in 
1794  to  Warren,  Maine,  and  in  1799  to  Hallowell.  In 
1815,  he  was  appointed  to  the  Supreme  Judicial  Court 
and  in  1820,  when  the  district  of  Maine  was  set  off  as  a 
state,  he  moved  to  Newburyport  and  in  1831  to  Boston. 
He  was  a  member  of  the  Hartford  Convention,  a  mem- 
ber of  the  State  Constitutional  Convention  of  1820  and 
twice  a  Presidential  Elector.  He  received  a  degree 
from  Bowdoin  in  1817,  Harvard  in  1841  and  Dart- 
mouth in  1849.  He  married  Eunice,  daughter  of  David 
Cobb  of  Taunton  and  having  resigned  his  seat  on  the 
bench  in  1850  died  at  his  home  in  Boston  June  22, 1855. 

Levi  Lincoln,  son  of  Levi,  was  born  in  Worcester,  Mass., 
October  25,  1782,  and  graduated  at  Harvard  in  1802. 
He  studied  law  with  his  father  and  settled  in  Worcester. 
He  was  Senator  in  1812  and  1844  and  1845,  being  Presi- 


OF  MASSACHUSETTS. 


189 


dent  in  the  latter  year,  Speaker  of  the  House  of  Rep- 
resentatives in  1822,  Lieutenant  Governor  in  1S23, 
Governor  from  1825  to  1831,  member  of  Congress  from 
1835  to  1811,  and  Collector  of  the  Port  of  Boston  from 
1811  to  1813.    He  died  in  Worcester,  May  29,  1868. 

Marcus  Morton  son  of  Nathaniel  and  Mary  (Cary) 
Morton,  was  born  in  Freetown,  Mass.,  February  19, 
1781  and  graduated  at  Brown  in  1801.  He  studied  law 
in  the  Law  School  in  Litchfield,  Conn.,  and  was  admit- 
ted to  the  Norfolk  bar  about  1807.  He  settled  in  Taun- 
ton, was  Clerk  of  the  Massachusetts  Senate  in  1811, 
member  of  Congress  from  1817  to  1821,  member  of  the 
Council  in  1823  and  Lieutenant  Governor  in  1821.  In 
1825  he  was  appointed  to  the  bench  of  the  Supreme 
Judicial  Court  and  resigned  in  1810  to  take  his  seat  as 
Governor,  a  position  which  he  again  held  in  1813.  In 
1815  he  was  appointed  Collector  of  the  Port  of  Boston 
and  held  that  office  until  1818.  He  was  a  member  of 
the  Constitutional  Convention  of  1853  and  a  Represent- 
ative in  1858.  He  received  the  degree  of  LL.  D.  from 
Harvard  in  1810.  He  married  in  1807,  Charlotte, 
daughter  of  James  Hodges,  of  Taunton,  and  died  in  that 
town,  February  6,  1861. 

Charles  Augustus  Dewey  son  of  Judge  Daniel,  was 
born  in  Williamstown,  Mass.,  March  13, 1793,  and  grad- 
uated at  "Williams  in  1811.  He  studied  law  with 
Theodore  Sedgwick  and  settled  in  Williamstown  where 
he  remained  until  1826,  when  he  removed  to  North- 
ampton. He  was  District  Attorney  from  1830  to  1837, 
when  he  was  appointed  to  the  bench  of  the  Supreme 
Judicial  Court.  He  remained  on  the  bench  until  his 
death  at  Northampton,  August  22,  1866. 

Samuel  Hubbard  was  born  in  Boston,  June  2,  1785, 
and  graduated  at  Yale  in  1802.  He  settled  first  in 
Biddeford,  Maine,  but  came  to  Boston  in  1810,  and  was 


190 


JUDICIAL  HISTORY 


associated  in  business  with  Charles  Jackson.  In  1842 
he  was  appointed  to  the  bench  of  the  Supreme  J  udicial 
Court,  and  served  until  his  death  in  Boston,  Decem- 
ber 24,  1847. 

Charles  Edwin  Forbes  was  born  in  West  Bridge  wa- 
ter, Mass.,  August  25,  1795,  and  graduated  alt  Brown 
in  1S15.  He  studied  law  in  Enfield  and  Northampton, 
Mass.,  and  was  admitted  to  the  bar  in  1818.  He  was 
County  Attorney  of  Hampshire  County,  a  Representa- 
tive, Judge  of  the  Court  of  Common  Pleas  from  1847 
to  1848,  and  in  the  latter  year  was  appointed  to  the 
bench  of  the  Supreme  Judicial  Court.  He  resigned  af- 
ter one  year's  service,  and  died  in  Northampton,  Feb- 
ruary 13,  1881. 

Theron  Metcalf,  son  of  Hanan  and  Mary  (Allen) 
Metcalf,  was  born  in  Franklin,  Mass.,  October  16,  1784, 
and  graduated  at  Brown  in  1805.  He  studied  law  with 
Mr.  Bacon  in  Canterbury,  Conn.,  and  at  the  law  school 
in  Litchfield,  Conn.,  then  the  only  law  school  in  the 
United  States,  and  established  by  Tappan  Reeve,  Chief 
Justice  of  the  Supreme  Court  of  Connecticut.  He  was 
admitted  to  the  bar  in  Connecticut,  and  after  a  year's 
study  with  Seth  Hastings  in  Mendon,  Mass.,  was  ad- 
mitted to  the  Norfolk  County  bar  in  Dedham  by  the 
Circuit  Court  of  Common  Pleas  in  1808,  and  by  the 
Supreme  Judicial  Court  in  1811.  He  practiced  in 
Franklin,  Mass.,  a  year,  and  moved  to  Dedham  in  1S09, 
and  on  the  5th  of  November  in  that  year  married  Julia, 
daughter  of  Uriah  Tracy,  United  States  Senator  from 
Connecticut.  In  1817  he  was  appointed  County  Attor- 
ney for  Norfolk  County,  and  served  twelve  years.  In 
1831-3-4  he  was  Representative,  and  in  1835  Senator. 
In  October,  1828,  he  opened  a  law  school  in  Dedham,  and 
in  December,  1839,  was  appointed  reporter  of  the  de- 
cisions of  the  Supreme  Judicial  Court.    His  reports  fill 


OF  MASSACHUSETTS. 


191 


thirteen  volumes,  and  cover  a  period  from  the  Suffolk 
March  term  in  1840  to  the  Essex  November  term  in 
1847.  He  was  appointed  to  the  bench  of  the  Supreme 
Judicial  Court  February  25,  1818,  and  resigned  in  1865. 
He  received  the  degree  of  LL.  D.  from  Brown  in  1841, 
and  Harvard  in  1818,  and  died  in  Boston,  November  13, 
1875. 

Richard  Fletcher  was  born  in  Cavendish,  Yt.,  Janu- 
ary 8,  1788,  and  graduated  at  Dartmouth  in  1806.  He 
studied  law  with  Daniel  Webster  and  was  admitted  to 
the  New  Hampshire  bar.  In  1820  he  was  admitted  to 
the  Suffolk  bar,  was  a  member  of  Congress  from  1887 
to  1839  and  Judge  of  the  Supreme  Judicial  Court  from 
1848  to  1853.  He  received  a  degree  of  LL.  D.  from 
Dartmouth  in  1846  and  Harvard  in  1849  and  bequeathed 
to  his  alma  mater  $100,000.  He  died  in  Boston  June  21, 
1869. 

Caleb  Cushing,  son  of  Capt.  John  N.  and  Lydia  (Dow) 
Cushing,  was  born  in  Salisbury,  Mass.,  January  17, 1800, 
and  graduated  at  Harvard  in  1817.  He  was  tutor  at 
Harvard  in  mathematics  and  natural  philosophy  for  two 
years  and  then  studied  law  with  Ebenezer  Moseley  of 
Newburyport  and  at  the  Harvard  Law  School.  He 
was  admitted  to  the  Essex  County  bar  in  1822  and  es- 
tablished himself  in  Newburyport.  He  was  a  Repre- 
sentative in  1825-33-34,  '45,  '50,  '59.  In  1834  he  was 
chosen  member  of  Congress  from  the  Essex  Norfh  Dis- 
trict, and  Mr.  Webster  said  that  he  had  not  been  in  his 
seat  six  weeks  before  he  was  looked  upon  as  the  highest 
authority  on  legislation  of  Congress  on  any  given  sub- 
ject. He  raised  a  regiment  in  Massachusetts  for  the 
Mexican  War  which  he  led  as  Colonel  until  appointed 
Brigadier  General.  In  1843  he  was  appointed  Minister 
to  China,  returning  in  about  a  year  with  a  treaty  which 
was  at  once  ratified.    In'  1852  he  was  appointed  Asso- 


192 


JUDICIAL  HISTORY 


ciate  Justice  of  the  Supreme  Judicial  Court,  leaving  the 
bench  in  1853  to  assume  the  position  of  Attorney  Gen- 
eral in  the  Cabinet  of  President  Pierce.  He  was  ap- 
pointed by  President  Lincoln  a  Commissioner  to  adjust 
claims  against  Mexico,  and  by  President  Grant,  Min- 
ister to  Spain,  and  of  counsel  for  the  United  States  at 
Geneva.  He  married  in  1823,  Caroline,  daughter  of 
Samuel  Sumner  Wilde  and  died  at  Newburyport,  Jan- 
uary 2,  1879.  It  may  perhaps  be  said  with  truth  that 
on  the  whole  he  was  the  most  learned  man  ever  raised 
in  Massachusetts. 

Benjamin  Franklin  Thomas,  a  grandson  of  Isaiah 
Thomas,  was  born  in  Boston  February  12,  1813,  and 
graduated  at  Brown  in  1830.  He  studied  law  in  "Wor- 
cester and  was  there  admitted  to  the  bar  in  1834.  He  was 
a  Representative  in  1842  from  Worcester,  Judge  of  Pro- 
bate for  Worcester  County  from  1844  to  1848  and  As- 
sociate Justice  of  the  Supreme  Judicial  Court  from  1853 
until  his  resignation  in  1859,  when  he  removed  to  Bos- 
ton. He  was  in  Congress  from  1861  to  1863  and  in 
1868  his  appointment  as  Chief  Justice  of  the  Supreme 
Judicial  Court  failed  to  be  confirmed  by  the  executive 
council.  He  received  the  decree  of  LL.  D.  from  Brown 
in  1853  and  Harvard  in  1854  and  died  September  27, 
1878. 

Pliny  Merrick,  son  of  Pliny  and  Ruth  (Cutter)  Merrick, 
was  born  in  Brookfield,  Mass.,  August  2, 1794,  and  grad- 
uated at  Harvard  in  1814.  He  studied  law  with  Levi 
Lincoln  in  Worcester  and  was  admitted  to  the  Worcester 
County  bar  in  1817.  He  practiced  first  in  Swansea,  then 
in  Taunton  as  a  partner  of  Marcus  Morton  and  in  1824  re- 
moved to  Worcester.  He  was  for  several  years  District 
Attorney  and  in  1843  was  appointed  Judge  of  the  Court 
of  Common  Pleas  and  resigned  in  1848.  In  1850  he 
was  again  appointed  to  the  Common  Pleas  bench  serving 


OF  MASSACHUSETTS. 


193 


until  1853,  when  he  was  appointed  to  the  bench  of  the 
Supreme  Judicial  Court  and  removed  to  Boston,  serving 
in  that  Court  until  1861.  In  1853  he  received  the  de- 
gree of  LL.  D.  from  Harvard  and  was  a  Harvard 
overseer  from  1852  to  1856.  He  was  Senior  Counsel 
with  Edward  D.  Sohier,  Junior,  for  Dr.  John  W.  Web- 
ster on  his  trial  for  murder.  He  married  Mary  Rebecca 
daughter  of  Isaiah  Thomas  and  died  in  Boston,  Febru- 
ary 1,  1867. 

Ebenezer  Rockwood  Hoar,  son  of  Samuel  and  Sarah 
(Sherman)  Hoar,  was  born  in  Concord,  Mass.,  Febru- 
ary 21,  1816,  and  graduated  at  Harvard  in  1835.  He 
studied  law  with  his  father,  with  Emory  Washburn  in 
Worcester  and  at  the  Harvard  Law  School  and  was  ad- 
mitted to  the  bar  in  Worcester  September  3, 1839.  He 
was  Judge  of  the  Court  of  Common  Pleas  from  1819  to 
1853,  Associate  Justice  of  the  Supreme  Judicial  Court 
from  1859  to  1869,  Attorney  General  of  the  United 
States  under  President  Grant,  a  member  of  the  Joint 
High  Commission  which  made  the  treaty  of  Washing- 
ton with  Great  Britain,  State  Senator,  member  of  Con- 
gress, Regent  of  the  Smithsonian  Institution,  Fellow  of 
Harvard  College,  member  and  President  of  the  Harvard 
Board  of  Overseers.  He  married,  November  26,  1810, 
Caroline  Downes,  daughter  of  Nathan  Brooks  of  Con- 
cord and  died  January  31,  1895.  He  received  the  de- 
gree of  LL.  D.  from  Harvard  in  1868,  and  from  Wil- 
liams in  1861. 

James  Denison  Colt  was  born  in  Pittsfielcl,  Mass.,  Oc- 
tober 8,  1819,  and  graduated  at  Williams  in  1838.  He 
began  to  study  law  while  a  tutor  in  a  family  in  Natchez, 
Miss.,  with  General  Gaines  and  returning  to  Pittsfield 
in  1810,  entered  the  office  of  Julius  Rockwell.  He  fin- 
ished his  studies  at  the  Harvard  La  w  School  and  was 
admitted  to  the  Berkshire  bar  in  1841.  He  became  a 
13 


194 


JUDICIAL  HISTORY 


partner  of  Mr.  Rockwell  and  so  remained  until  the  latter 
was  appointed  Judge  of  the  Superior  Court  in  1859. 
He  then  was  associated  with  his  brother-in-law  Thomas 
P.  Pingree  and  in  1865  was  appointed  to  the  bench  of 
the  Supreme  Judicial  Court.  He  resigned  on  account 
of  ill  health  in  1866  but  was  reinstated  in  1868,  and  con- 
tinued in  office  until  his  death  August  9,  1881.  He  was 
a  Representative  in  1853-4  and  in  1870  received  the  de- 
gree of  LL.  D.  from  Williams. 

Dwight  Foster  was  born  in  Worcester  in  1828,  and 
graduated  at  Yale  in  1848.  He  was  admitted  to  the 
bar  in  Worcester  in  1849  and  practiced  in  Worcester 
and  Boston.  He  was  Attorney  General  from  1861  to 
1864  and  sat  on  the  bench  of  the  Supreme  Judicial  Court 
from  1866  to  1869.    He  died  April  18,  1884. 

John  Wells,  son  of  Noah,  was  born  in  Rowe,  Mass., 
February  17,  1819,  and  graduated  at  Williams  in  1838. 
After  teaching  school  for  a  time  in  Newport,  R.  L,  he 
studied  law  in  the  office  of  Wells  &  Davis  of  Greenfield 
and  at  the  Harvard  Law  School  and  was  admitted  to 
the  Franklin  County  bar  in  1841.  He  settled  in  Chicopee 
and  in  1858  was  appointed  Judge  of  Probate  and  In- 
solvency, holding  that  office  until  his  resignation  in 
1864.  He  was  a  Representative  in  1849-51-57-65  and 
occupied  a  seat  on  the  bench  of  the  Supreme  Judicial 
Court  from  1866  until  his  death.  He  married  May  15, 
1850,  Sophia  Dwight,  of  Boston  and  died  in  Salem, 
November  23,  1875. 

Seth  Ames,  son  of  Fisher  Ames,  was  born  in  Dedham, 
Mass.,  April  19,  1805,  and  graduated  at  Harvard  in 
i  1825.  He  studied  law  at  the  Harvard  Law  School,  in 
the  office  of  George  Bliss  in  Springfield,  and  in  the  office 
of  Lemuel  Shaw  in  Boston  and  was  admitted  to  the 
Court  of  Common  Pleas  in  Dedham  in  1828,  and  to  the 
Supreme  Judicial  Court  in  Cambridge  in  1830.  He  began 


OF  MASSACHUSETTS. 


195 


practice  in  Lowell,  was  [Representative  in  1 832,  Senator  in  \ 
1841  and  City  Solicitor  of  Lowell  from  1842  to  1849.  In 
1849  he  was  appointed  Clerk  of  the  Courts  for  Middle- 
sex County  and  removed  to  Cambridge,  and  in  1859  was  I 
appointed  to  the  bench  of  the  Superior  Court  of  which 
he  was  made  Chief  Justice  in  1867.  In  1869  he  was  ap- 
pointed Judge  of  the  Supreme  Judicial  Court  and  re- 
moved to  Brookline.  He  resigned  his  seat  January  15, 
1881,  and  died  in  Brookline,  August  15  in  the  same  year. 
He  married  in  1830  Margaret,  daughter  of  Gamaliel  I 
Bradford  of  Boston,  and  in  1849  Abigail  Fisher,  daughter  , 
of  Rev.  Samuel  Dana  of  Marblehead. 


William  Crowninshield  Endicott,  son  of  William  Put- 
nam and  Mary  (Crowninshield)  Endicott,  was  born  in 
Salem  November  26, 1826,  and  graduated  at  Harvard  in 
1847,  receiving  the  degree  of  LL.  D.  in  1S82.  He  studied 
law  at  the  Harvard  Law  School  and  in  the  office  of  Na- 
thaniel J.  Lord  of  Salem  and  was  admitted  to  the  Essex 
bar  in  1850.  He  established  himself  in  Salem,  and 
from  1857  to  1864  was  City  Solicitor  of  Salem.  In  1870 
he  was  the  Democratic  candidate  for  Congress,  and  in 
1871-2-3  the  Democratic  candidate  for  Attorney  Gen- 
eral. In  1873  he  was  appointed  to  the  Supreme  Judi- 
cial Court  and  resigned  in  1882.  In  1884  he  was  the 
Democratic  candidate  for  Governor,  and  in  1885  was 
appointed  Secretary  of  War  by  President  Cleveland. 
In  1889  he  resumed  practice  in  Salem.  He  married 
Ellen,  daughter  of  George  Peabody  of  Salem,  Decem- 
ber 13,  1859,  and  died  in  Boston  May  6,  1900. 

Charles  Devens,  son  of  Charles  and  Mary  (Lithgow) 
Devens,  was  born  in  Charlestown,  Mass.,  April  4,  1820, 
and  graduated  at  Harvard  in  1838,  receiving  the  degree 
of  LL.  D.  in  1877.  He  studied  law  at  the  Harvard  Law 
School  and  in  the  office  of  George  T.  Davis  of  Green- 
field, and  was  admitted  to  the  Franklin  County  bar  in 


196 


JUDICIAL  HISTORY 


1841.  He  was  associated  with  Mr.  Davis  until  1849, 
representing  Franklin  County  in  the  Senate  in  1848. 
From  1849  to  1853  he  was  United  States  Marshal  for 
Massachusetts,  and  in  1854  became  associated  in  prac- 
tice with  George  F.  Hoar  in  Worcester.  While  Marshal 
it  became  his  official  duty  to  execute  the  process  re- 
manding to  his  alleged  owner  Thomas  Sims,  a  fugitive 
slave,  and  until  the  war  came  on  made  unavailing  efforts 
to  purchase  his  freedom.  After  the  emancipation  proc- 
lamation had  freed  Sims,  Mr.  Devens  assisted  him,  and 
when  Attorney  General  of  the  United  States  gave  him 
a  place  in  his  department.  In  April,  1861,  he  took 
command  of  a  rifle  battalion  for  three  months'  service 
and  was  posted  at  Fort  McHenry  in  Baltimore  harbor. 
He  was  afterwards  commissioned  Colonel  of  the  15th 
regiment  of  Massachusetts  volunteers,  raised  for  three 
years'  service,  and  was  engaged  in  the  battle  of  Balls 
Bluff,  where  after  the  death  of  Col.  Baker  he  was  left 
in  command.  He  was  made  Brigadier  General  of  Vol- 
unteers April  15,  1862,  and  was  engaged  in  the  battles 
of  Williamsburg,  Fairoaks,  South  Mountain  and  An- 
tietam.  At  the  battle  of  Chancellorsville  he  commanded 
a  division  of  the  Eleventh  corps,  and  in  1S64-5  was  at- 
tached to  the  Eighteenth  corps.  In  December,  1864, 
he  commanded  the  Twenty-fourth  corps,  and  in  April, 
1865,  was  brevetted  Major  General.  He  was  mustered 
out  in  June,  1866,  and  in  1867  was  appointed  to  the 
bench  of  the  Superior  Court,  remaining  on  the  bench 
until  1873,  when  he  was  appointed  to  the  Supreme  Ju- 
dicial Court.  In  1877  he  left  the  bench  for  the  position 
of  United  States  Attorney  General  in  the  cabinet  of 
President  Hays,  and  after  his  retirement  was  again,  in 
1881,  called  to  the  Supreme  Judicial  bench.  He  died 
in  Boston,  January  7,  1891. 

Otis  Phillips  Lord,  son  of  Nathaniel  and  Eunice  (Kim- 


OF  MASSACHUSETTS. 


197 


ball)  Lord,  was  born  in  Ipswich,  Mass.,  July  11,  1S12, 
and  graduated  at  Amherst  in  1832.  He  studied  law 
with  Oliver  B.  Morris  of  Springfield,  and  at  the  Har- 
vard Law  School,  and  was  admitted  to  the  Essex  bar 
in  December,  1835.  He  first  settled  in  Ipswich,  but  re- 
moved in  1814  to  Salem,  which  place  he  represented  in 
the  Legislature  in  1817-8,  '52,  '53,  '54,  serving  the  last 
year  as  Speaker.  He  was  State  Senator  in  1819,  a  mem- 
ber of  the  Constitutional  Convention  in  1853,  and  in 
1859  was  appointed  Judge  of  the  Superior  Court,  hold- 
ing his  seat  until  appointed  December  21,  1875,  Judge 
of  the  Supreme  Judicial  Court.  He  resigned  Decem- 
ber S,  1882,  and  died  in  Salem,  March  13,  1881. 

Augustus  Lord  Soule,  son  of  Gideon  L.  Soule,  was 
born  in  Exeter,  N.  H.,  A.pril  19, 1827,  and  graduated  at 
Harvard  in  1816.  He  studied  law  in  New  Hampshire 
and  at  the  Harvard  Law  School  and  was  admitted  to 
the  bar  in  1819.  He  settled  in  Chicopee  at  first  and 
after  two  years  removed  to  Springfield.  He  was  ap- 
pointed to  the  bench  of  the  Supreme  Judicial  Court  in 
1877  and  in  1880  removed  to  Boston.  He  resigned  his 
seat  on  the  bench  in  1881  and  died  at  Franconia,  N.  H., 
August  21,  1887. 

William  Allen,  son  of  William,  was  born  in  Bruns- 
wick, Maine,  March  31, 1822,  and  graduated  at  Amherst 
in  1812.  He  studied  law  at  the  Yale  Law  School  and 
at  Northampton  and  was  admitted  to  the  bar  in  1815. 
He  sat  on  the  bench  of  the  Supreme  Judicial  Court 
from  1881  until  his  death  June  1,  1891. 

Charles  Allen,  son  of  Sylvester  and  Harriet  (Ripley) 
Allen,  was  born  in  Greenfield,  Mass.,  April  27,  1827, 
and  graduated  at  Harvard  in  1817,  receiving  the  degree 
of  LL.  D.  in  1892.  He  read  law  in  the  ofiice  of  George 
T.  Davis,  of  Greenfield,  and  at  the  Harvard  Law  School 
and  was  admitted  to  the  bar  at  Northampton  Septem- 


198 


JUDICIAL  HISTORY 


ber  30,  1850.  He  remained  in  Greenfield  in  practice 
until  1862  when  he  was  appointed  Reporter  of  Supreme 
Court  decisions  and  removed  to  Boston.  He  held  the 
office  of  Reporter  until  1867  and  his  Reports  are  con- 
tained in  fourteen  volumes  covering  a  period  from  the 
Suffolk  January  term  of  1861  to  the  Suffolk  January 
term  of  1867.  From  1867  to  1872  he  was  Attorney 
General  and  in  1880  he  was  appointed  one  of  the  Com- 
missioners to  revise  the  statutes  of  the  Commonwealth. 
In  1882  he  was  appointed  to  the  Supreme  Judicial 
bench  and  resigned  in  1898. 

Waldo  Colburn,  son  of  Thatcher  and  Hattie  Cleve- 
land Colburn,  was  born  in  Dedham,  Mass.,  November  13, 
1824.  He  was  educated  at  the  public  schools  and  at 
Phillips  A  ndover  Academy.  In  1847  he  began  to  read 
law  with  Ira  Colburn,  of  Dedham,  and  was  admitted 
to  the  Norfolk  bar  May  3,  1850,  after  spending  a  short 
time  at  the  Harvard  Law  School.  In  1875  he  was  ap- 
pointed Judge  of  the  Superior  Court,  serving  until  1882 
when  he  was  appointed  to  the  bench  of  the  Supreme 
Judicial  Court.  He  was  a  Representative  in  1853-54, 
Senator  in  1870  and  for  several  years  the  Democratic 
candidate  for  Attorney  General.  He  married  first,  No- 
vember 21,  1852,  Mary  Ellis,  daughter  of  Bunker  Gay, 
of  Dedham,  and  second,  August  5,  1861,  Elizabeth  C, 
daughter  of  Ezra  W.  Sampson  of  Dedham.  He  re- 
mained on  the  bench  until  his  death  September  26, 
18S5. 

William  Sewall  .Gardner  was  born  in  Hallowell, 
Maine,  October  1,  1827,  and  graduated  at  Bowdoin  in 
1850.  He  studied  law  in  Lowell  and  was  admitted  to 
the  Middlesex  bar  in  October,  1852.  He  began  practice 
in  Lowell  associated  with  Theodore  H.  Sweetser,  but 
removed  to  Boston  in  1861.  In  1875  he  was  appointed 
to  the  bench  of  the  Superior  Court  and  in  1885  was 


OF  MASSACHUSETTS. 


199 


promoted  to  the  Supreme  Judicial  Court.  He  resigned 
September  7,  1887,  and  died  in  Newton  April  4,  1888. 

Marcus  Perrin  Knowlton,  son  of  Merrick  and  Fatima 
(Perrin)  Knowlton,  was  born  in  Wilbraham,  Mass,  Feb- 
ruary 3,  1839,  and  graduated  at  Yale  in  1866.  After 
leaving  college  he  taught  school  a  year  in  Norwalk, 
Conn.,  and  reading  law  in  the  offices  of  James  G.  Allen, 
of  Palmer,  and  Augustus  L.  Soule,  of  Springfield,  he 
was  admitted  to  the  bar  in  Springfield  in  1862.  In 
1881  he  was  appointed  to  the  bench  of  the  Superior 
Court  and  in  1887  was  promoted  to  the  Supreme  Judi- 
cial Court  where  he  still  holds  a  seat.  He  married, 
July  18,  1867,  Sophia,  daughter  ,  of  William  and  Saba 
A.  (Cushman)  Ritchie,  of  Springfield. 

James  Madison  Morton  graduated  at  the  Harvard 
Law  School  in  1861  and  was  admitted  to  the  Bristol 
County  bar  September  20,  in  that  year.  He  practiced 
in  Fall  River  and  in  1890  was  appointed  Judge  of  the 
Supreme  Judicial  Court.    He  is  now  on  the  bench. 

John  Lathrop,  son  of  John  P.  and  Maria  M.  Lathrop, 
was  born  in  Boston,  Februarj7  8,  1835,  and  graduated 
at  Burlington  College,  New  Jersey,  in  1853  and  at  the 
Harvard  Law  School  in  1855.  After  further  study  in 
the  office  of  Charles  Greeley  Loring,  Francis  Caleb 
Loring  and  Caleb  William  Loring,  he  was  admitted  to 
the  Suffolk  bar  in  1856,  and  to  practice  in  the  United 
States  Supreme  Court  in  1872.  In  the  war  of  1861  he 
was  Captain  in  the  35th  Massachusetts  Regiment  in 
1862  and  1863,  Reporter  of  the  decisions  of  the  Supreme 
Court  from  1871  to  1888,  vols.  115  to  145  inclusive, 
Judge  of  the  Superior  Court  from  1888  to  1891,  and 
was  appointed  to  the  bench  of  the  Supreme  Judicial 
Court,  January  28,  1891,  which  position  he  still  holds. 
He  has  been  a  Lecturer  at  the  Harvard  and  Boston  Law 
Schools,  and  the  editor  of  several  law  books.    He  mar- 


200 


JUDICIAL  HISTORY 


ried  in  Boston,  June  24-,  1875,  Eliza  D.,  daughter  of 
Richard  G.  Parker,  and  lives  in  Boston. 

James  Madison  Barker,  son  of  John  Y.  and  Sarah 
(Althorp)  Barker,  was  born  in  Pittsfield,  Mass.,  Octo- 
ber 23,  1839,  and  graduated  at  Williams  in  1860.  He 
studied  law  at  the  Harvard  Law  School,  and  was  ad- 
mitted to  the  Suffolk  bar,  January  13,  1863.  He  prac- 
ticed in  Pittsfield,  associated  at  different  times  with 
Charles  N.  Emerson  and  Thomas  P.  Pingree  until  1882, 
when  he  was  appointed  Judge  of  the  Superior  Court. 
In  1891  he  was  promoted  to  the  Supreme  Judicial  Court, 
and  is  still  on  the  bench.  He  was  a  Representative  in 
1872-3,  and  in  1881  a  Commissioner  for  the  revision  of 
the  statutes.  He  married  in  Bath,  N.  Y.,  September  21, 
1864,  Helena,  daughter  of  Levi  Carter  and  Pamelia 
Nelson  (Woods)  Whiting. 

John  Wilkes  Hammond,  son  of  John  Wilkes  and 
Maria  Louisa  (Southworth)  Hammond,  was  born  in 
Mattapoisett  (then  Rochester),  December  16,  1837,  and 
graduated  at  Tufts  in  1861.  He  afterwards  taught 
school  in  Tisbury,  Stoughton,  Wakefield  and  Melrose, 
serving  during  an  interval  nine  months  in  the  3d  Mass- 
achusetts Regiment.  He  studied  law  at  the  Harvard 
Law. School  and  in  the  office  of  Sweetser  &  Gardner  in 
Boston,  and  was  admitted  to  the  Middlesex  bar  in 
March,  1861.  He  settled  in  Cambridge,  which  place 
ae  represented  in  the  General  Court  in  1872-3,  was 
City  Solicitor  three  years  and  in  1886  was  appointed  to 
the  bench  of  the  Superior  Court.  In  1898  he  was  pro- 
moted to  the  Supreme  Judicial  Court  and  is  now  on 
the  bench.  He  married  in  Taunton,  August  15,  1866, 
Clara  Ellen,  daughter  of  Benjamin  F.  and  Clara  (Fos- 
ter) Tweed. 

William  Caleb  Loring,  son  of  Caleb  William  and 
Elizabeth  Smith  (Peabody)  Loring,  and  grandson  of 


OF  MASSACHUSETTS. 


201 


Charles  Greeley  Loring,  an  eminent  member  of  the 
Suffolk  bar,  was  born  in  Beverly,  Mass.,  August  24, 
1851,  and  graduated,  at  Harvard  in  1872.  He  gradu- 
ated at  the  Harvard  Law  School  in  1874  and  was 
admitted  to  the  Suffolk  bar  in  June  of  that  year. 
From  December,  1876  to  July,  1878,  he  was  Assistant 
Attorney  General  of  the  Commonwealth,  and  in  1899 
was  appointed  to  the  bench  of  the  Supreme  Judicial 
Court. 

On  the  date  of  the  passage  of  the  Act  establishing 
the  Supreme  Judicial  Court,  July  3,  1782,  another  Act 
was  passed  establishing  a  Court  of  Common  Pleas 
which  took  the  place  of  the  Inferior  Court  of  Common 
Pleas,  established  by  an  Act  passed  June  27, 1699.  The 
Court  of  Common  Pleas  was  a  County  Court  kept  by 
four  Judges,  appointed  from  within  each  county,  hold- 
ing jurisdiction  in  all  civil  actions  of  more  than  forty 
shillings.  It  bore  the  same  relation  to  the  old  Inferior 
Court  of  Common  Pleas  which  the  Supreme  Judicial 
Court  bore  to  the  Superior  Court  of  Judicature.  The 
Judges  of  this  Court  in  the  various  counties  which  con- 
tinued until  June  21,  1811,  were  in  : 

Barnstable,  David  Thacher,  Samuel  Savage,  Ebe- 
nezer  Bacon,  David  Scudder,  Samuel  Waterman  and 
Nathaniel  Freeman. 

Berkshire,  Charles  Goodrich,  Elijah  Dwight,  Jahleel 
Woodbridge,  Thomas  J.  Skinner,  John  Bacon,  Nathan- 
iel Bishop,  David  Noble  and  William  Walker. 

Bristol,  Samuel  Tobey,  Stephen  Burbank,  Edward 
Pope,  Samuel  Fales,  Laban  Wheaton  and  Seth  Wash- 
burn. 

Dukes,  John  Allen,  Benjamin  Bassett,  Beriah  Nor- 
ton, Matthew  Mayhew  and  William  Jernigan. 

Essex,  Samuel  Phillips,  Benjamin  Greenleaf,  John 
Pickering,  Jr.,  Samuel  Holton,  Nathan  Dane,  Ebenezer 


202 


JUDICIAL  HISTORY 


March,  John  Tread  well,  Timothy  Pickering  and  David 
Kilham. 

Hampshire,  Samuel  Lyman,  Moses  Bliss,  Samuel 
Henshaw,  Joseph  Lyman,  Jonathan  Leavitt  and  John 
Hooker. 

Middlesex,  John  Tyng,  Henry  Gardner,  Samuel  P. 
Savage,  John  Remington,  James  Prescott,  Nathaniel 
Gorham,  James  Winthrop,  William  Hull  and  Ephraim 
Wood. 

Nantucket,  Stephen  Huzzey,  George  Gardner,  Wil- 
liam Hammatt,  James  Coffin  and  Walter  Folger,  Jr. 

Norfolk,  Samuel  Niles,  Richard  Cranch,  William 
Heath,  Stephen  Metcalf,  Nathaniel  Ames,  John  Reed, 
Edward  H.  Robbins,  Oliver  Everett,  Daniel  Perry, 
Samuel  Haven,  Moses  Everett  and  Thomas  Boylston 
Adams. 

Plymouth,  Ephraim  Spooner,  Daniel  Howard  and 
Kilburn  Whitman. 

Suffolk,  Oliver  Wendell,  Samuel  Bassett,  Thomas 
Crafts,  William  Denison,  George  Richards  Minot,  She- 
arjashub  Bourne  and  William  Wetmore. 

Worcester,  Artemas  Ward,  Moses  Gill,  Samuel  Baker, 
Joseph  Dorr,  Dwight  Foster,  Michael  Gill,  Elijah  Brig- 
ham,  John  Sprague,  Jonathan  Warner  and  Benjamin 
Heywood. 

On  the  21st  of  June,  1811,  the  Court  of  Common 
Pleas  was  abolished  and  the  Circuit  Court  of  Common 
Pleas  was  established  in  its  place.  The  Act  passed  at 
that  date  provided  that  the  Commonwealth  except 
Nantucket  and  Dukes  County,  should  be  divided  into 
six  circuits,  as  follows :  the  Middle  Circuit,  including 
Suffolk,  Essex  and  Middlesex  counties ;  the  Western 
Circuit,  including  Worcester,  Hampshire  and  Berkshire 
counties;  the  Southern  Circuit,  including  Norfolk,  Ply- 
mouth, Bristol  and  Barnstable  counties  ;  the  First  East- 


OF  MASSACHUSETTS. 


203 


ern  Circuit,  including  York,  Cumberland  and  Oxford 
counties ;  the  Second  Eastern  Circuit,  including  Lincoln, 
Kennebec  and  Somerset  counties ;  and  the  Third  East- 
ern Circuit,  including  Hancock  and  Washington  coun- 
ties. 

The  Act  also  provided  that  "  there  shall  be  held  and 
kept  in  each  county  in  the  several  circuits  aforesaid,  at 
such  times  and  places  as  are  now  by  law  appointed  for 
holding  the  Court  of  Common  Pleas  in  the  several 
counties,  a  Circuit  Court  of  Common  Pleas  to  consist  of 
one  Chief  Justice  and  two  Associate  Justices,  each  of 
whom  shall  be  an  inhabitant  of  the  Commonwealth,  and 
any  two  of  them  shall  be  a  Court  .  .  .  with  original 
jurisdiction  of  all  civil  actions  .  .  .  (excepting  only 
such  actions  wherein  the  Supreme  Judicial  Court  or 
where  Justices  of  the  Peace  now  have  original  jurisdic- 
tion) and  shall  also  have  jurisdiction  of  all  such  offenses, 
crimes  and  misdemeanors  as  before  the  passage  of  this 
Act  were  cognizable  by  the  respective  Courts  of  Com- 
mon Pleas."  This  Court  had  appellate  jurisdiction  in  the 
case  of  sentences  or  judgments  of  a  justice  of  the  peace 
and  the  Act  provided  "  that  all  actions,  suits,  matters 
and  things  which  may  be  pending  in  the  several  Courts 
of  Common  Pleas  on  the  second  of  December  (1811), 
and  all  writs,  executions,  warrants,  recognizances  and 
processes  returnable  "  to  the  Common  Pleas  Court  shall 
be  returnable  to  the  Circuit  Court  of  Common  Pleas. 
This  Court  continued  until  February  14,  1821,  but  in 
the  mean  time  by  an  Act  passed  February  26,  1S14, 
Suffolk  County,  was  taken  out  of  the  Middle  Circuit 
and  given  a  court  of  its  own  which  will  be  mentioned 
hereafter. 

The  Judges  of  the  Circuit  Court  of  Common  Pleas  in 
the  various  circuits  within  the  present  limits  of  Massa- 
chusetts were  as  follows: 


204 


JUDICIAL  HISTORY 


"  Middle  Circuit. — Samuel  Dana,  William  Wetmore, 
Stephen  Minot. 

"Southern  Circuit. — Kichard  Sears,  Calvin  Tilden, 
Seth  Washburn,  Apollos  Tobey,  Nahum  Mitchell,  Elisha 
Ruggles,  John  Thomas,  John  M.  Williams,  Thomas 
Boylston  Adams,  Jairus  Ware,  Ebenezer  Warren,  Sam- 
uel Bass,  Joseph  Heath,  Samuel  Swett. 

"  Western  Circuit. — Ezekiel  Bacon,  Joseph  Whiton, 
Wolcott  Hubbell,  Elijah  Paine,  Edward  Bangs,  Jona- 
than Leavitt,  Ezra  Starkweather,  Samuel  Porter,  Ben- 
jamin Kimball,  Oliver  Crosby  Paine,  John  Hooker, 
Abner  Brown,  Amos  Hamilton,  Aaron  Tufts." 

Suffolk  was  taken  out  of  the  Middle  Circuit  by  an 
Act  passed  February  26,  1814,  which  gave  that  county 
a  Court  of  its  own.  The  Act  provided  that  after  the 
28th  of  March,  1814,  a  Court  of  Common  Pleas  should 
be  held  at  Boston  for  the  County  of  Suffolk  on  the  first 
Tuesdays  of  Januarjr,  March,  May,  July,  September  and 
November  to  be  called  "  the  Boston  Court  of  Common 
Pleas."  It  was  to  have  one  Judge  with  jurisdiction 
over  all  causes  of  a  civil  nature  which  had  been  cog- 
nizable by  the  Circuit  Court  of  Common  Pleas.  It  was 
also  to  have  original  and  concurrent  jurisdiction  in  all 
civil  actions  in  the  county  of  Suffolk  under  the  sum  of 
twenty  dollars,  and  to  hold  a  Court  to  be  called  the 
Town  Court  for  the  summary  trial  without  jury  of  all 
such  actions  on  Wednesday  of  every  week.  The  Clerk 
of  said  Court  was  to  be  called  "  Recorder  "  and  to  have 
power  to  hold  the  Court  in  case  of  the  death  or  absence 
of  the  Judge.  This  Court  continued  until  the  act  was 
passed  February  14,  1821,  establishing  a  Court  of  Com- 
mon Pleas  for  the  Commonwealth.  The  Judges  of  this 
Court  were  the  following :  Harrison  Gray  Otis,  ap- 
pointed March  16,  1814;  William  Minot,  appointed 


OF  MASSACHUSETTS. 


205 


March  2,  1818  ;  William  Prescott,  appointed  April  21, 
1818 ;  Artemas  Ward,  appointed  May  11,  1S19. 

Another  court  was  established  for  Boston  at  an 
earlier  date  than  the  Boston  Court  of  Common  Pleas. 
An  Act  was  passed  March  4,  1800,  to  establish  "  a 
Municipal  Court  in  the  Town  of  Boston."  It  provided 
"  that  there  shall  be  hold  en  within  and  for  the  town  of 
Boston  on  the  first  Monday  of  every  month  by  such 
learned,  able  and  discreet  person  as  the  Governor  shall 
appoint  and  commission  pursuant  to  the  constitution,  a 
court  of  justice  by  the  name  of  the  Municipal  Court  for 
the  Town  of  Boston ;  that  said  court  shall  have  full 
power  to  adjourn  from  day  to  day  and  shall  have  cog- 
nizance of  all  crimes  and  offences  committed  within  the 
town  of  Boston  which  are  now  cognizable  in  the  Court 
of  General  Sessions  of  the  Peace ;  and  cognizance  of 
all  crimes  and  offences  against  the  By-Laws  of  the  said 
town;  of  frauds,  deceits,  monopolies,  forestalling,  re- 
o-ratincr,  thefts  and  nuisances." 

This  Court  had  a  longer  life  than  any  other  except 
the  Supreme  Judicial  Court  established  under  the  con- 
stitution. It  was  presided  over  by  one  Judge  until 
March  1,  18-13,  when  it  was  provided  by  law  that  the 
Judges  of  the  Court  of  Common  Pleas  should  be  ex- 
officio  the  Judges  of  the  Municipal  Court.  When  the 
Superior  Court  of  the  County  of  Suffolk  was  established 
in  1855  the  powers  of  the  Judges  of  the  Court  of  Com- 
mon Pleas  in  relation  to  the  Municipal  Court  were 
transferred  to  the  new  court,  and  when  the  Superior 
Court  for  the  Commonwealth  was  established  in  1S59 
the  Municipal  Court  was  finally  abolished.  The  Judges 
of  this  Court  at  various  times  were  George  Richards 
Minot,  appointed  in  1800;  Thomas  Dawes,  Jr.,  ap- 
pointed in  1802;  Josiah  Quincy,  appointed  January  16, 
1822,  and  Peter  O  Thacher,  appointed  May  14,  1823. 


206 


JUDICIAL  HISTOEY 


It  may  be  well  to  refer  at  this  stage  of  our  narrative 
to  the  other  Boston  courts.  On  the  21st  of  May,  1855, 
an  Act  was  passed  to  establish  "the  Superior  Court  of| 
the  County  of  Suffolk,"  which  provided  for  the  appoint- 
ment of  four  Justices,  one  of  whom  should  be  a  Chief 
Justice  with  jurisdiction  "  in  all  cases,  and  in  the  same  ■ 
manner  and  to  the  same  extent  in  which  the  Court  of 
Common  Pleas  has  jurisdiction  in  said  county,  whether 
original  and  exclusive,  concurrent  or  appellate  ;  and  they 
shall  also  have  exclusive  jurisdiction  in  all  cases  in  which 
the  Court  of  Common  Pleas  now  has  concurrent  jurisdic- 
tion with  the  Supreme  Judicial  Court  in  said  county, 
wherein  the  damages  demanded  on  the  property  claimed 
shall  not  exceed  in  amount  or  value  the  sum  of  fifteen 
hundred  dollars ;  and  no  action  in  which  the  said  Superior 
Court  may  have  jurisdiction  under  this  act  shall  be 
brought  in  the  Supreme  Judicial  Court  in  the  County  of 
Suffolk,  except  the  damages  therein  demanded  on  the 
property  claimed,  shall  exceed  in  amount  or  value  the 
sum  of  fifteen  hundred  dollars,  and  when  the  plaintiff, 
or  someone  in  his  behalf,  shall,  before  service  of  the 
writ,  make  oath  or  affirmation  before  some  Justice  of 
the  Peace,  that  the  matter  sought  to  be  recovered  ac- 
tually exceeds  in  amount  or  value  the  said  sum." 

The  Act  provided  for  six  terms  a  year  in  Boston,  and 
at  any  term,  to  suit  public  convenience,  two  sessions 
might  be  held.  The  city  of  Boston  was  to  pay  the  ex- 
penses of  the  court,  the  Justices  were  to  be  ex-officio 
Justices  of  the  Municipal  Court,  the  terms  of  the  Court 
of  Common  Pleas  in  the  County  of  Suffolk  were  abol- 
ished, and  "  Judges  of  the  said  Superior  Court  and  of  the 
Court  of  Common  Pleas  might  interchange  services  and 
hold  mutual  consultations  in  matters  of  law  and  as  to 
rules  of  practice.  This  court  was  abolished  by  the  Act 
passed  April  5,  1859,  establishing  the  present  Superior 


OF  MASSACHUSETTS. 


207 


Court.  The  following  Judges  were  appointed  to  this 
court  during  its  short  life  of  four  years :  Albert  H.  Nel- 
son, Chief  Justice,  appointed  October  13,  1855,  who  re- 
signed in  1858 ;  Josiah  G.  Abbott,  Associate  Justice, 
appointed  October  13,  1855,  who  resigned  in  1858 ; 
Stephen  G.  Nash,  Associate  Justice,  appointed  Octo- 
ber 13, 1855  ;  Charles  P.  Huntington,  Associate  Justice, 
appointed  October  13,  1855  ;  Marcus  Morton,  Jr.,  Asso- 
ciate Justice,  vice  Abbott,  resigned,  appointed  March  14, 
185S  ;  Charles  Allen,  Chief  Justice,  vice  Nelson,  re- 
signed, appointed  March  19,  1858. 

A  Police  Court  was  established  in  Boston  by  an  Act 
passed  February  23,  1822,  which  provided  that  "  there 
shall  be  and  hereby  is  established  within  and  for  the 
city  of  Boston,  a  Police  Court,  to  consist  of  three 
learned,  able  and  discreet  persons,  to  be  appointed  and 
commissioned  by  the  Governor  pursuant  to  the  Consti- 
tution, and  the  Session  Justice  shall  preside  in  said 
court ;  and  a  court  shall  be  held  daily  at  nine  of  the 
clock  a.  m.,  and  at  three  of  the  clock  p.  m.,  by  some  one 
or  more  of  said  Justices,  and  at  any  other  times  when 
necessary  to  take  cognizance  of  all  crimes,  offences  and 
misdemeanors  whereof  Justices  of  the  Peace  may  take 
cognizance  by  law,  and  of  all  offences  which  may  be 
cognizable  by  one  or  more  of  said  Justices,  according  to 
the  by-laws,  rules  and  regulations  which  may  be  estab- 
lished by  the  proper  authority  of  the  city  of  Boston." 

The  Act  also  provided  "  that  a  court  shall  be  held  by 
one  or  more  of  said  justices  on  two  several  days  in  each 
week,  and  as  much  oftener  as  may  be  necessary  to  be 
called  and  styled  the  Justices  Court  for  the  County  of  Suf- 
folk which  court  shall  have  original,  exclusive  jurisdiction 
and  cognizance  of  all  civil  suits  and  actions,  which  before 
and  until  the  passing  of  this  act,  might  by  law  be  heard, 
tried  and  determined  before  any  justice  of  the  peace 


208 


JUDICIAL  HISTORY 


within  and  for  the  County  of  Suffolk,  and  an  appeal 
shall  be  allowed  from  all  judgments  in  said  Justices' 
Court  in  like  manner  as  appeals  are  now  allowed  by  law 
from  judgments  of  justices  of  the  peace  in  civil  actions 
in  the  said  County  of  Suffolk." 

The  final  provision  of  the  Act  was  "  that  it  shall  be  of 
no  force  or  effect  unless  a  certain  act  establishing  the  City 
of  Boston,  passed  at  the  present  session  shall  be  ac- 
cepted by  the  inhabitants  of  the  town  of  Boston  pur- 
suant to  the  provisions  therein  made." 

The  Police  Court  and  the  Justices'  Court  remained 
distinct,  one  exercising  criminal  and  the  other  civil  juris- 
diction with  the  same  Judges  for  both  until  1860  when 
it  was  enacted  in  the  General  Statutes  that  "all  cases 
and  proceedings  pending  in  or  returnable  to  the  Justices 
Court  for  the  County  of  Suffolk,  and  the  records  and 
jurisdiction  of  said  Court  are  transferred  to  the  Police 
Court." 

The  Police  Court  was  abolished  by  an  Act  passed 
May  29, 1866,  and  during  its  life  of  forty-four  years  the 
following  Judges  served  on  its  bench  : 

Benjamin  Whitman,  appointed  June  10,  1822  ;  Wil- 
liam Simmons,  appointed  June  10,  1822  ;  Henry  Orne, 
appointed  June  10,  1822 ;  John  G.  Rogers,  appointed 
August  10,  1831;  James  C.  Merrill,  appointed  Febru- 
ary 10,  1834  ;  Abel  Cushing,  appointed  June  30, 1843  ; 
Thomas  Russell,  appointed  February  26,  1852;  Sebeus 
C.  Maine,  appointed  November  3,  1858;  George  D; 
Wells,  appointed  May  31,  1859;  Edwin  Wright,  ap- 
pointed July  9,  1861  ;  Mellen  Chamberlain,  appointed 
June  28,  1861. 

The  Act  abolishing  the  Police  Court  passed  May  29, 
1866,  established  the  present  Municipal  Court  of  the 
city  of  Boston.  It  provided  that  "  there  shall  be  estab- 
lished a  court  to  be  called  the  Municipal  Court  of  the 


OF  MASSACHUSETTS. 


209 


city  of  Boston  which  shall  have  the  same  powers  and 
jurisdictions  in  all  actions  and  proceedings  at  law 
whether  civil  or  criminal  as  the  Police  Court  of  the  city 
of  Boston  now  has,  except  as  hereinafter  provided," 
that  "  all  cases  now  pending  at  the  time  this  Act  shall 
take  effect  whether  civil  or  criminal  in  the  Police  Court 
of  the  city  of  Boston,  shall  be  transferred  to  and  have 
day  in  the  proper  day,  and  term  of  the  Municipal  Court  of 
the  city  of  Boston,  and  all  writs,  processes,  complaints, 
petitions  and  proceedings  whatever,  which  are  made  re- 
turnable or  to  be  entered  in  said  Police  Court  shall  be 
returnable  to  and  have  day  in  the  proper  day  and  term 
of  said  Municipal  Court ;  that  there  shall  be  appointed, 
commissioned  and  qualified  .  .  .  three  suitable  per- 
sons as  Justices  of  the  Municipal  Court  of  the  city  of 
Boston,  one  of  whom  shall  be  appointed  ...  as  Chief 
Justice  thereof,  one  or  more  of  whom  shall  hold  a  court 
for  criminal  business  daily  except  Sundays  or  legal  holi- 
da}Ts  in  the  forenoon  at  nine  o'clock  and  in  the  afternoon 
except  on  Saturday  at  three  o'clock,  or  some  hour  there- 
after, and  a  court  for  civil  business  weekly,  each  term  of 
which  shall  begin  on  Saturday."  By  an  Act  passed 
February  28, 1882,  the  number  of  Associate  Justices  was 
increased  to  three,  by  an  Act  passed  May  29  to  four,  by 
another  passed  April  26,  1894  to  five,  and  by  still  an- 
other passed  April  28, 1 899  to  seven.  By  an  Act  passed 
June  10,  1870,  it  was  provided  that  a  special  Justice 
should  be  appointed  and  by  another  Act  passed  April  1, 
1896,  that  a  second  special  should  be  appointed.  The 
following  are  the  Judges  of  this  Court  since  its  organi- 
zation. 

John  W.  Bacon,  Chief  Justice,  appointed  July  2, 
1866 ;  Francis  W.  Hurd,  Associate,  July  2,  1866 ;  Mel- 
len  Chamberlain,  Associate,  June  29,  1866 ;  Chief  Jus- 
tice, December  1, 1871 ;  Joseph  M.  Churchill,  Associate, 
14 


210 


JUDICIAL  HISTORY 


March  3,  1871 ;  William  E.  Parnienter,  Associate,  De- 
cember 12,  1871 ;  Chief  Justice,  January  24,  1883 ; 
John  Wilder  May,  Chief  Justice,  October  12,  1878; 
Wm.  J.  Forsaith,  Special,  January  23,1872;  Associate, 
March  9,  1882 ;  Mathew  J.  McCafferty,  Associate,  Jan- 
uary 24,  1883 ;  George  Z.  Adams,  Special,  August  4, 
1882  ;  Associate,  October  1, 1896 ;  John  H.  Hardy,  As- 
sociate, June  3,  1885 ;  Benjamin  R.  Curtis,  Associate, 
April  28, 1886 ;  Frederick  D.  Ely,  Associate,  October  10, 
1888;  John  H.  Burke,  Associate,  February  11,  1891; 
John  F.  Brown,  Associate,  May  31,  1894;  Henry  S. 
Dewey,  Special,  October  9,  1896  ;  Associate,  May  17, 
1899;  George  L.  Wentworth,  Special,  October  2,  1896, 
Associate,  May  17,  1899  ;  John  A.  Bennett,  Special, 
May  26, 1899  ;  William  Sullivan,  Special,  May  26, 1899. 

The  courts  for  the  various  Boston  districts  will  be  re- 
ferred to  in  connection  with  the  Police  and  District 
Courts  of  the  Commonwealth. 

The  following  are  sketches  as  far  as  the  writer  has 
found  available  material  of  the  Judges  of  the  County 
Courts  of  Common  Pleas  established  July  3,  1782 ;  the 
Circuit  Courts  of  Common  Pleas  established  June  21, 
1811;  the  Boston  Court  of  Common  Pleas  established 
February  26,  1814 ;  the  Municipal  Court  of  the  town  of 
Boston  established  March  4,  1800 ;  the  Superior  Court 
of  the  County  of  Suffolk  established  May  21, 1855  ;  the 
Police  and  Justices'  Court  of  Boston  established  Febru- 
ary 23,  1822,  and  the  present  Municipal  Court  of  the 
city  of  Boston  established  May  29,  1866. 

COUNTY  COURTS  OF  COMMON  PLEAS. 

Nathaniel  Freeman  was  born  in  Dennis,  Mass.,  April  8, 
1741,  and  settled  as  a  physician  in  Sandwich  in  1765. 
He  afterwards  studied  law  with  Col.  James  Otis  of 
Barnstable,  and  was  Judge  of  Probate  of  Barnstable 


OF  MASSACHUSETTS. 


211 


Count}7  many  years,  He  was  a  Representative,  mem- 
ber of  Congress  from  1795  to  1799,  and  Chief  Justice  of 
the  Barnstable  County  Court  of  Common  Pleas. 

David  Scudder,  son  of  Ebenezer,  was  born  in  Barn- 
stable January  5,  1763,  and  was  Clerk  of  the  Courts  of 
Barnstable  County  from  1809  to  1S20.  He  was  ap- 
pointed Judge  of  the  Court  of  Common  Pleas  for  Barn- 
stable County,  1803.    He  married  Desire  Gage. 

Charles  Goodrich  was  born  in  1720,  and  settled  in 
Pittsfield  in  1753.  He  was  a  Representative  in  the 
Provincial  General  Court  and  a  member  of  the  Provin- 
cial Congress  in  1771.  He  was  a  Judge  of  the  Berk- 
shire Court  of  Common  Pleas  from  1784  to  1788,  and 
died  in  1816. 

Elijah  D wight  was  of  Great  Barrington,  and  served 
on  the  bench  of  the  Berkshire  Court  of  Common  Pleas 
from  1787  to  1794. 

Jahleel  Woodbridge  has  been  noticed  as  a  Judge  of 
the  Inferior  Court  of  Common  Pleas. 

Thomas  J.  Skinner  of  Williamstown  was  Judge  of 
the  Berkshire  Court  of  Common  Pleas  from  1788  to 
1807,  and  Chief  Justice  after  1795. 

John  Bacon  has  been  noticed  as  a  Judge  of  the  Infe- 
rior Court  of  Common  Pleas. 

Nathaniel  Bishop  was  born  in  Guilford,  Conn.,  June  13, 
1751,  and  settled  in  Richmond,  Mass.,  in  1777.  He  was 
Representative,  Register  of  Probate,  Judge  of  the  Com- 
mon Pleas  of  Berkshire  County,  and  Chief  Justice  of 
the  Sessions,  and  died  February  1,  1826. 

David  Xoble  was  born  in  New  Milford,  Conn.  De- 
cember 9,  1744,  and  graduated  at  Yale  in  1764.  He 
settled  in  Williamstown,  Mass.,  in  1770,  and  in  1795 
was  appointed  Judge  of  the  Court  of  Common  Pleas 
for  Berkshire  County.    He  died  March  4,  1803. 

Samuel  Tobey  was  son  of  Rev.  Mr.  Tobey  of  Berkley, 


212 


JUDICIAL  HISTORY 


Mass.,  and  was  Representative,  Senator  and  Judge  of 
the  Common  Pleas  Court  for  Bristol  County.  He  died 
in  1825. 

Edward  Pope,  Judge  of  the  Common  Pleas  Court  of 
Bristol  County,  practiced  in  Taunton,  in  1782,  and  in 
New  Bedford  in  1788. 

Samuel  Fales,  son  of  Nathaniel  and  Sarah  Fales,  was 
born  in  Bristol,  R.  L,  September  15,  1750,  and  gradu- 
ated at  Harvard  in  1773.  He  settled  in  Taunton  and 
was  Clerk  of  the  Courts  and  afterwards  Chief  Justice 
of  the  Court  of  Common  Pleas  for  Bristol  County.  He 
married  Sarah,  daughter  of  John  Cooke  of  Toverton, 
R.  L,  and  died  in  Boston,  January  20,  1818. 

Laban  Wheaton,  son  of  Dr.  George  and  Elizabeth 
(Morey)  Wheaton,  was  born  in  Norton,  March  13, 1754, 
and  graduated  at  Harvard  in  1774.  He  studied  divin- 
ity with  Rev.  Abiel  Leonard  of  Woodstock,  Conn.,  and 
in  May,  1775,  was  appointed  army  chaplain.  In  1785 
he  began  to  study  law  in  Watertown  and  was  admitted 
to  the  Suffolk  bar  in  1788.  He  settled  in  Norton,  was 
Representative  seven  years,  Member  of  Congress  eight 
years,  and  in  1810  was  appointed  Chief  Justice  of  the 
Bristol  County  Court  of  Common  Pleas.  In  1819  he 
was  appointed  Chief  Justice  of  the  Court  of  Sessions. 
He  married  in  1794  Fanny,  daughter  of  Samuel  Morey 
of  Norton,  and  died  March  23,  1846. 

Matthew  Mayhew  has  been  noticed  as  Judge  of  the 
Inferior  Court  of  Common  Pleas. 

William  Jernigan,  Judge  of  Dukes  County  Common 
Pleas,  was  of  Edgartown. 

George  Cabot  was  born  in  Salem,  December  3,  1751, 
and  received  an  honorary  degree  of  A.  M.  from  Harvard 
in  1779.  He  made  several  voyages  as  Master  and  in 
1776  was  a  member  of  the  Provincial  Congress.  In 
1786  he  was  appointed  Judge  of  the  Court  of  Common 


OF  MASSACHUSETTS. 


213 


Pleas  for  Essex  County  and  in  1788  was  a  member  of 
the  Convention  which  adopted  the  Federal  Constitution. 
In  1791  lie  was  chosen  United  States  Senator  and  in  1798 
declined  the  appointment  of  Secretary  of  the  Navy.  He 
was  President  of  the  Hartford  Convention  and  died  in 
Boston,  April  IS,  1823. 

John  Treadwell  graduated  at  Harvard  in  1758,  and 
died  in  1811. 

Samuel  Nye  graduated  at  Harvard  in  1771,  and  died 
in  1831:. 

Nathan  Eead  graduated  at  Harvard  in  17S1,  and  died 
in  1S19. 

Asa  Andrews,  son  of  Eobert,  was  born  in  Shrews- 
bury, Mass.,  May  11,  1762,  and  graduated  at  Harvard 
in  1783.  He  studied  law  with  Caleb  Strong  and  settled 
in  Ipswich.  He  was  appointed  Judge  of  the  Essex 
County  Common  Pleas  Court,  December  19,  1809,  and 
died  in  Ipswich,  January  13,  1856. 

John  Prince  graduated  at  Harvard  in  1800,  and  was 
admitted  to  the  Essex  bar  in  1804,  and  settled  in  Salem. 
He  was  appointed  Judge  of  the  Essex  County  Common 
Pleas  Court,  January  20,  1810,  and  died  in  1848. 

John  Tyng  has  been  noticed  as  Judge  of  the  Infe- 
rior Court  of  Common  Pleas. 

Henry  Gardner  has  been  noticed  as  Judge  of  the 
Inferior  Court  of  Common  Pleas. 

Samuel  P.  Savage  has  been  noticed  as  Judge  of  the 
Inferior  Court  of  Common  Pleas. 

John  Eemington  has  been  noticed  as  Judge  of  the 
Inferior  Court  of  Common  Pleas. 

James  Prescott,  appointed  from  Groton,  Judge  of  the 
Middlesex  County  Court  of  Common  Pleas,  Decem- 
ber 22,  1782,  was  practicing  in  Groton  in  1792. 

Nathaniel  Gorham  was  born  in  Charlestown,  Mass., 
May  27,  1738.    He  was  a  Eepresentative  from  1771  to 


214 


JUDICIAL  HISTORY 


1775,  delegate  to  Provincial  Congress,  a  member  of  the 
Board  of  War,  a  delegate  to  Congress  in  1782-3  and 
from  1785  to  1787  and  in  1786  its  President.  He  was 
appointed  Judge  of  the  Middlesex  Court  of  Common 
Pleas  July  1,  1785,  and  died  at  Canandaigua,  N.  Y., 
October  22,  1826. 

James  Winthrop  was  of  Cambridge,  and  graduated 
at  Harvard  in  1769.  He  was  appointed  Judge  of  the 
Middlesex  Court  of  Common  Pleas,  March  5,  1791,  and 
died  in  1821. 

William  Hull  was  born  in  Derby,  June  24,  1753,  and 
graduated  at  Yale.  He  studied  law  at  Litchfield,  Conn., 
and  was  admitted  to  the  bar  in  1775.  In  the  Revolu- 
tion he  was  Captain,  Major  and  Lieutenant-Colonel,  and 
afterwards  State  Senator  and  Major  General  in  the 
Militia.  He  held  the  office  of  Governor  of  Michigan 
Territory  from  1805  to  1812,  when  he  was  appointed 
to  the  command  of  the  Northwestern  Army.  He  finally 
returned  to  his  home  in  Newton,  where  he  died  Novem- 
ber 29,  1825.  He  was  appointed  Judge  of  the  Middle- 
sex Court  of  Common  Pleas  May  14,  1792. 

Ephraim  Wood,  son  of  Ephraim  and  Mary  (Buss) 
Wood  was  born  in  Concord,  Mass.,  August  1, 1733.  In. 
early  life  he  was  a  shoemaker,  later  Town  Clerk  and 
Selectman  of  Concord.  He  was  appointed  Judge  of  the 
Middlesex  Court  of  Common  Pleas,  May  15,  1797,  and 
died  in  Concord,  April  8,  1814. 

Artemas  Ward  has  been  noticed  as  Judge  of  the  In- 
ferior Court  of  Common  Pleas. 

Moses  Gill  has  been  noticed  as  Judge  of  the  Inferior 
Court  of  Common  Pleas. 

Joseph  Dorr  has  been  noticed  as  Judge  of  the  Infe- 
rior Court  of  Common  Pleas. 

Dwight  Foster,  son  of  Jedediah,  was  born  in  Brook- 
field,  Mass.,  December  7, 1757,  and  graduated  at  Brown, 


OF  MASSACHUSETTS. 


215 


in  1774.  He  was  admitted  to  the  bar  in  1780,  and  set- 
tled in  Brooklield  without  a  lawyer  within  twenty 
miles.  He  was  High  Sheriff  of  Worcester  County  in 
1792,  Representative,  Senator,  member  of  Congress 
from  1793  to  1799,  United  States  Senator  from  1800  to 
1803,  member  of  the  Council,  delegate  to  the  Conven- 
tion to  frame  the  Constitution,  and  Chief  Justice  of  the 
Worcester  County  Court  of  Common  Pleas  from  1S01 
to  1811.    He  died  in  1823. 

Michael  Gill  was  of  Princeton  and  sat  on  the  bench 
of  the  Worcester  County  Court  of  Common  Pleas  from 
1795  to  1798. 

Elijah  Brigham  was  born  in  Northboro,  Mass.,  in  1751, 
and  graduated  at  Dartmouth  in  1778.  He  studied  divin- 
ity but  abandoned  it  for  public  life.  He  was  Senator, 
Councillor,  and  member  of  Congress,  and  was  appointed 
Judge  of  the  Worcester  Court  of  Common  Pleas  June  26, 
1795,  serving  until  1811.  He  died  in  Washington  in 
1816. 

John  Sprague  has  been  noticed  as  a  Barrister. 

Benjamin  Heywood  was  born  in  Shrewsbury,  Mass., 
and  began  life  as  a  carpenter.  He  afterwards  gradu- 
ated at  Harvard  in  1775,  and  served  as  Captain  in  the 
Revolution.  He  settled  as  a  lawyer  in  Worcester,  and 
March  6,  1802  was  appointed  Judge  of  the  Worcester 
County  Court  of  Common  Pleas.    He  died  in  1816. 

Moses  Bliss  graduated  at  Yale  in  1755.  He  studied 
divinity  and  afterwards  law,  and  was  admitted  to  the 
Hampshire  bar  in  1761.  He  was  appointed  January  15, 
1798,  Judge  of  the  Hampshire  Common  Pleas  Court. 

Samuel  Henshaw  of  Northampton  graduated  at  Har- 
vard in  1773,  and  was  Judge  of  Probate  of  Hampshire 
County  from  1797  to  1809.  He  was  appointed  Decem- 
ber 10,  1799,  Judge  of  the  Hampshire  Court  of  Com- 
mon Pleas  and  died  in  1809. 


216 


JUDICIAL  HISTORY 


Joseph  Lyman  was  born  in  Northampton,  Mass.,  Oc- 
tober 22,  1767,  and  graduated  at  Yale  in  1783.  He 
settled  in  his  native  town  and  was  Judge  of  Probate  of 
Hampshire  County,  and  a  trustee  of  Williams  College 
from  1814  to  1832.  He  was  appointed  February  24, 
1804,  Judge  of  the  Hampshire  Court  of  Common  Pleas, 
and  died  in  Northampton,  December  11,  1847. 

Jonathan  Leavitt,  son  of  Rev.  Jonathan  of  Heath, 
Mass.,  graduated  at  Yale  in  1786  and  studied  law  in 
New  Haven.  He  settled  in  Greenfield  and  was  ap- 
pointed March  1,  1808,  Chief  Justice  of  the  Hampshire 
Court  of  Common  Pleas.  After  the  incorporation  of 
Franklin  County  he  was  appointed  October  14,  1812, 
Judge  of  Probate.  He  married  a  daughter  of  Ezra 
Stiles,  President  of  Yale,  and  died  in  1830. 

John  Hooker  was  of  Springfield  and  was  Judge  of 
Probate  of  Hampden  County. 

Samuel  Niles  was  son  of  Rev.  Samuel  Niles  of  Brain- 
tree,  and  was  a  Representative  and  Councillor  before  he 
was  appointed  Judge  of  the  Norfolk  County  Court  of 
Common  Pleas  in  1793. 

Richard  Cranch  was  born  in  Kingsbridge,  Devon, 
England,  in  November,  1726,  and  came  to  Massachu- 
setts in  1746.  He  received  an  honorary  degree  of 
Master  of  Arts  from  Harvard  in  1780,  and  was  ap- 
pointed Judge  of  the  Norfolk  Common  Pleas  in  1793. 
He  married  Mary,  daughter  of  Rev.  Vm.  Smith  of 
Weymouth,  and  died  October  16,  1811. 

William  Heath  was  born  in  Roxbury,  March  2,  1737, 
and  was  bred  a  farmer.  He  was  commander  of  the 
Ancient  and  Honorable  Artillery  Co.,  in  1770,  and 
Colonel  of  the  Suffolk  Regiment,  in  1774.  He  was  a 
Kepresentative  in  1761,  a  delegate  to  Provincial  Con- 
gress in  1774-5,  Brigadier  General  of  the  Militia  in 
1774,  Major  General  in  1775,  and  Major  General  in  the 


OF  MASSACHUSETTS. 


217 


Continental  Army  in  1776.  In  1777  he  commanded 
the  Eastern  Department  and  afterwards  on  the  Hudson. 
He  was  a  delegate  to  the  Federal  Constitutional  Con- 
vention in  17S8,  State  Senator  from  1780  to  1792  and 
in  1806  declined  the  position  of  Lieutenant  Governor. 
He  was  appointed  Judge  of  the  Norfolk  Common  Pleas 
July  2  1793,  and  was  also  Judge  of  Probate.  He  died 
January  24,  IS  11. 

John  Reed  was  born  in  Sudbury,  Mass.,  in  1728.  He 
removed  to  Roxbury  and  learned  the  trade  of  tanner. 
He  served  as  paymaster  in  the  Revolution,  was  Rep- 
resentative in  1794,  Senator  from  1796  to  1799,  a  Coun- 
cillor in  1801,  and  in  1793  was  made  Judge  of  the 
Norfolk  Common  Pleas.    He  died  June  3,  1S13. 

Edward  Hutchinson  Robbins  was  born  in  Milton, 
Mass.,  February  19,  1758,  and  graduated  at  Harvard, 
in  1775.  He  studied  law  in  Bridgewater  with  Oakes 
Angier  and  was  a  member  of  the  Suffolk  bar  in  1780. 
He  was  Speaker  of  the  Massachusetts  House  of  Rep- 
resentatives from  1793  to  1802,  Lieutenant  Governor 
from  1802  to  1S06,  and  Judge  of  Probate  of  Norfolk 
County  from  1814  until  his  death.  He  owned  large 
estates  in  Maine  and  the  columns  in  front  of  the  State 
House  and  in  its  Doric  Hall  were  cut  by  Thomas 
Yose,  of  Robbinston,  near  West  Maguerrawock  Lake  in 
township  No.  5,  now  Calais,  on  his  land.  He  was  ap- 
pointed September  3, 1793,  Judge  of  the  Norfolk  Com- 
mon Pleas  and  died  December  29,  1829. 

Oliver  Everett  was  born  in  Declham,  June  11,  1752, 
and  graduated  at  Harvard  in  1779.  He  was  ordained 
pastor  of  the  new  South  Church  in  Boston  in  1782,  and 
in  1797  was  appointed  Judge  of  the  Norfolk  Common 
Pleas.  He  was  the  father  of  Edward  and  Alexander 
H.  Everett. 

Samuel  Haven  graduated  at  Harvard  in  1789,  and 


218 


JUDICIAL  HISTORY 


was  practicing  in  Dedham  in  1794.  He  was  appointed 
Judge  of  the  Norfolk  Common  Pleas  January  10, 1793, 
and  died  in  1S47. 

Moses  Everett,  brother  of  Oliver,  was  born  in  Ded- 
ham, July  15, 1750,  and  graduated  at  Harvard  in  1771. 
He  was  Pastor  of  the  Dorchester  Church  in  1774,  and  a 
Eepresentative  in  1794-5.  He  was  appointed  Judge  of 
the  Norfolk  Common  Pleas  in  1803,  and  died  March  25, 
1813. 

Thomas  Boylston  Adams  graduated  at  Harvard  in 
1790,  and  was  admitted  to  the  Suffolk  bar  in  1795.  He 
was  appointed  Chief  Justice  of  the  Norfolk  Common 
Pleas  June  28,  1811,  and  died  in  1832. 

Ephraim  Spooner  was  a  merchant  in  Plymouth,  and 
was  born  in  that  town  in  1735.  He  was  the  son  of 
Thomas  and  Sarah  (Nelson)  Spooner,  and  died  in  1818. 
He  was  appointed  to  the  Plymouth  County  Court  of 
Common  Pleas,  July  5,  1790. 

Daniel  Howard  was  of  North  Bridgewater. 

Kilborn  Whitman,  son  of  Zechariah  and  Abigail  (Kil- 
borh)  Whitman,  was  born  in  Bridgewater,  August  17, 
1765,  and  graduated  at  Harvard  in  1785.  He  studied 
divinity  with  Rev.  Dr.  William  Shaw  of  Marshfield,  and 
was  settled  some  time  over  the  parish  in  Pembroke, 
Mass.  After  ten  years'  service  in  the  ministry,  he 
studied  law  with  his  brother  Benjamin  in  Hanover, 
Mass.,  and  was  admitted  to  the  Suffolk  bar  in  1791. 
He  continued  his  residence  in  Pembroke  until  his  death, 
and  was  County  Attorney  from  1811  to  1832.  He  was 
appointed  to  the  Plymouth  County  Common  Pleas 
May  10, 1810.  He  married  Elizabeth,  daughter  of  Isaac 
Winslow  of  Marshfield,  and  died  December  11,  1835. 

William  Hammatt  was  son  of  Abraham  and  Lucy 
(Howland)  Hammatt,  and  lived  for  a  time  in  Nantucket, 
and  was  appointed  in  17S3  Judge  of  the  Nantucket 
Common  Pleas.    He  afterwards  removed  to  Plymouth. 


OF  MASSACHUSETTS. 


219 


Walter  Folger  was  born  in  Nantucket  June  12, 1765, 
and  for  many  years  was  a  clock  maker,  and  calculated 
and  published  an  almanac  for  1790.  He  studied  medi- 
cine and  law,  practicing  the  latter  in  Massachusetts  and 
Ehode  Island,  and  was  appointed  in  1808  Chief  Justice 
of  the  Nantucket  Common  Pleas.  He  was  Represen- 
tative,  Senator,  member  of  Congress  from  1817  to  1821, 
and  during  the  War  of  1S12  was  among  the  earliest 
manufacturers  of  power  looms  in  the  country.  He  died 
September  5,  1819. 

Thomas  Crafts  graduated  at  Harvard  in  1785,  and 
studied  law  with  Christopher  Gore.  He  was  admitted 
to  the  Suffolk  bar  in  1788,  and  was  appointed  to  the 
Suffolk  Common  Pleas  July  9, 1793.    He  died  in  1798. 

George  Richards  Minot  was  born  in  Boston  Decem- 
ber 28,  1758,  and  graduated  at  Harvard  in  1778.  He 
was  admited  to  the  Suffolk  bar  in  1781,  was  Clerk  of 
the  House  of  Representatives  from  1782  to  1791,  and 
Secretary  of  the  Convention  which  adopted  the  Consti- 
tution. He  was  Judge  of  Probate  for  Suffolk  County 
from  1792  until  his  death,  and  in  1800  was  appointed 
Chief  Justice  of  the  Suffolk  Common  Pleas  and  in  the 
same  year  a  Judge  of  the  "  Municipal  Court  in  the  Town 
of  Boston."    He  died  in  Boston  January  2,  1802. 

William  Wetmore  will  be  noticed  as  Judge  of  the  Cir- 
cuit Court  of  Common  Pleas. 

Shearjashub  Bourne  has  already  been  noticed  as  a 
Barrister. 

CIRCUIT  COURT  OF  COMMON  PLEAS. 

Samuel  Dana,  son  of  Samuel  Dana,  was  born  in  Gro- 
ton,  Mass.,  June  26, 1767,  and  practiced  law  in  Charles- 
town.  He  was  President  of  the  Massachusetts  Senate 
in  1807-8,  and  from  1811  to  1813  and  member  of  Con- 
gress in  1814-15.    He  was  Chief  Justice  of  the  Circuit 


220 


JUDICIAL  HISTORY 


Court  of  Common  Pleas  for  the  Middle  Circuit,  and 
died  in  Charlestown  November  20,  1825. 

William  Wetmore  graduated  at  Harvard  in  1770, 
and  was  a  member  of  the  Suffolk  bar  in  1781  and  a  Bar- 
rister in  1787.  He  was  Associate  Justice  of  the  Cir- 
cuit Court  of  Common  Pleas  for  the  Middle  Circuit  and 
died  in  1830. 

Stephen  Minot,  son  of  Jonas  and  Mary  (Hall)  Minot, 
was  born  in  Concord,  Mass.,  September  28,  1776,  and 
graduated  at  Harvard  in  1801.  He  studied  law  with 
Samuel  Dana  of  Groton,  and  began  practice  in  New 
Gloucester,  Maine.  He  afterwards  removed  to  Minot, 
Maine,  and  finally  to  Haverhill,  Mass.  He  was  appointed 
in  1811  Judge  of  the  Circuit  Court  of  Common  Pleas  for 
the  Middle  Circuit,  and  in  1824  was  appointed  County 
Attorney  for  Essex,  and  was  a  Representative  in  1S25. 
He  married  November  9,  1809,  Rebecca,  daughter  of 
Samuel  Trask  of  Bradford,  Mass.,  and  died  at  Haverhill 
April  6,  1861. 

Nahum  Mitchell,  son  of  Gushing  and  Jannet  (Orr) 
Mitchell,  was  born  in  East  Bridgewater  February  12, 
1769,  and  graduated  at  Harvard  in  1789.  He  studied 
law  with  Joshua  Thomas  of  Plymouth  and  was  ad- 
mitted to  the  bar  in  Boston.  He  practiced  law  in  East 
Bridgewater  and  among  his  students  were  Ezekiel  Whit- 
man, Chief  Justice  of  the  Supreme  Court  of  Maine,  and 
Elijah  Hay  ward,  Judge  of  the  Supreme  Court  of  Ohio. 
He  was  Representative  from  1798  to  1803,  and  in  1809 
and  1812,  Senator  in  1813,  member  of  Congress  from 
1803  to  1805,  one  of  the  Commission  in  1800  to  establish 
the  Massachusetts  and  Rhode  Island  line  and  in  1823  to 
establish  the  Connecticut  line.  He  was  Judge  of  the 
Circuit  Court  of  Common  Pleas  for  the  Southern  Circuit 
from  1811  to  1821  and  the  last  two  years  Chief  Justice. 
He  published  in  1810  a  history  of  Bridgewater.  He 


OF  MASSACHUSETTS. 


221 


married  in  1794,  Nabby,  daughter  of  General  Sylvanus 
Lazell  of  Bridgewater  and  died  in  Plymouth  August  1, 
1853. 

John  Thomas,  son  of  General  John  and  Hannah 
(Thomas)  Thomas  was  born  in  Kingston,  Mass.,  in  1766, 
and  was  appointed  in  1811  Judge  of  the  Circuit  Court 
of  Common  Pleas  for  the  Southern  Circuit. 

John  Mason  Williams  will  be  noticed  hereafter  as 
Chief  Justice  of  the  Court  of  Common  Pleas  for  the 
Commonwealth. 

Thomas  Boylston  Adams,  son  of  President  John 
Adams,  was  born  in  that  part  of  Braintree  which  is  now 
Quincy,  September  15, 1772,  and  graduated  at  Harvard 
in  1790.  He  was  a  Representative  in  1805,  and  a  Coun- 
cillor in  1811.  He  was  appointed  in  1811  Chief  Justice 
of  the  Circuit  Court  of  Common  Pleas  for  the  Southern 
Circuit  and  died  March  2,  1832. 

Jairus  Ware  was  born  in  Wrentham,  Mass.,  Janu- 
ary 22,  1772,  and  graduated  at  Brown  in  1797.  He 
practiced  in  Wrentham,  was  a  Representative  from  1809 
to  1816  and  from  1818  to  1823,  a  Councillor  in  1825  and 
1826,  and  in  1811  Justice  of  the  Circuit  Court  Of  Com- 
mon Pleas  for  the  Southern  Circuit.  He  was  Clerk 
of  the  Courts  for  Norfolk  County  from  1826  to  his 
death  January  18,  1836. 

Ebenezer  Warren,  son  of  Joseph  and  Mary  Stevens 
Warren  and  brother  of  Dr.  Joseph,  killed  at  Bunker  Hill, 
was  born  in  Roxbury  in  1719  and  settled  in  Foxboro. 
He  was  appointed  in  1793  Judge  of  the  Norfolk  Com- 
mon Pleas  and  in  1814  was  appointed  Sessions  Justice  of 
the  Circuit  Court  of  Common  Pleas  for  the  Southern 
Circuit.    He  died  in  Foxboro,  January  9,  1S24. 

Samuel  Bass  was  born  in  Braintree,  May  15,  1757, 
and  was  Representative,  Selectman  and  Town  Clerk, 
and  in  1814,  was  appointed  Judge  of  the  Circuit  Court 
of  Common  Pleas  for  the  Southern  Circuit. 


222 


JUDICIAL  HISTORY 


Joseph  Heath,  son  of  General  "William  Heath,  was 
born  in  Roxbury,  April  2,  1766.  He  was  appointed 
Sessions  Justice  of  the  Circuit  Court  of  Common  Pleas 
in  1816,  and  died  July  5,  1842. 

Samuel  Swett,  son  of  Dr.  John  Barnard  and  Char- 
lotte (Bourne)  Swett,  was  born  in  Newburyport,  June  9, 
1782,  and  graduated  at  Harvard  in  1800.  He  studied 
law  with  Jeremiah  Smith  in  Exeter,  and  with  Charles 
Jackson  and  Edward  Livermore,  and  practicing  in  Sa- 
lem from  1803  to  1810  removed  to  Boston.  He  was 
appointed  Judge  of  the  Circuit  Court  of  Common  Pleas 
for  the  Southern  Circuit.  He  married,  August  25, 
1807,  Lucia,  daughter  of  William  Gray,  and  died  Octo- 
ber 28,  1866. 

Ezekiel  Bacon,  son  of  Rev.  John  Bacon,  was  born  in 
Boston,  September  1,  1776,  and  graduated  at  Yale  in 
1791,  and  in  1796  was  a  member  of  the  Suffolk  bar. 
He  moved  to  Stockbriclge,  was  Representative  in  1805-6, 
and  in  1813  was  appointed  Chief  Justice  of  the  Circuit 
Court  of  Common  Pleas  for  the  Western  Circuit.  From 
1807  to  1813  he  was  member  of  Congress,  and  from 
1813  to  1815  Eirst  Comptroller  of  the  United  States 
Treasury.  He  moved  in  1816  to  Utica,  N.  Y.,  and 
there  died  October  IS,  1870. 

Joseph  Whiton  was  of  Lee,  and  was  appointed  in  1814 
Judge  of  the  Circuit  Court  of  Common  Pleas  for  the 
Western  Circuit. 

Wolcott  Hubbell  was  of  Lanesboro,  and  was  appointed 
in  1814,  Judge  of  the  Circuit  Court  of  Common  Pleas 
for  the  Western  Circuit. 

Elijah  Paine  was  born  in  1761,  and  practiced  in  Ash- 
field  from  1793  until  his  death  in  1846.  He  was  a  Judge 
of  the  Western  Circuit  of  Common  Pleas. 

Edward  Bangs  was  born  in  Hard  wick,  Mass.,  in  1756, 
and  graduated  at  Harvard  in  1777.    He  studied  law 


OF  MASSACHUSETTS. 


223 


with  Theophilus  Parsons  in  Newburyport,  and  settled 
in  Worcester.  In  1805  he  became  a  partner  of  ¥m.  E. 
Green,  and  in  1811  was  appointed  Judge  of  the  West- 
ern Circuit  Court  of  Common  Pleas.    He  died  in  1818. 

Jonathan  Leavitt  has  been  noticed  as  Judge  of  the 
Hampshire  County  Court  of  Common  Pleas. 

THE  BOSTON  COUET  OF  C01TM0N  PLEAS. 

Harrison  Gray  Otis  was  son  of  Samuel  Allyne  Otis, 
and  was  born  in  Boston,  October  8,  1765,  and  gradu- 
ated at  Harvard  in  1783.  He  studied  law  with  John 
Lowell  and  was  admitted  to  the  Suffolk  bar  in  1786. 
He  was  a  Eepresentative  in  1796,  member  of  Congress 
from  1797  to  1801,  United  States  Attorney  in  1801, 
Speaker  of  the  Massachusetts  House  of  Representatives 
from  1803  to  1805,  President  of  the  Senate  from  1805 
to  1811,  and  March  16,  1811  was  appointed  Judge  of 
the  Boston  Court  of  Common  Pleas.  He  was  United 
States  Senator  from  1817  to  1822,  Mayor  of  Boston  from 
1829  to  1831,  and  in  1811  a  member  of  the  Hartford 
Convention.  He  married  Sail)7,  daughter  of  William  and 
Grace  (Spear)  Foster  and  died  in  Boston,  October  28, 
1818. 

William  Minot,  son  of  George  Richards  Minot,  was 
born  in  Boston,  September  17,  1783,  and  graduated  at 
Harvard  in  1802.  He  studied  law  in  Boston  with  Jo- 
seph Hall,  and  was  admitted  to  the  Suffolk  bar  in  1805. 
The  city  authorities  placed  in  his  hands  in  1801  a  fund 
bequeathed  to  the  town  by  Benjamin  Franklin  with  the 
view  of  encouraging  }Toung  and  meritorious  mechanics, 
which  he  gratuitously  administered  for  sixty  years, 
during  which  it  increased  from  four  thousand  to  one 
hundred  and  twenty-five  thousand  dollars.  He  suc- 
ceeded, March  2,  1818,  Harrison  Gray  Otis  as  Judge  of 
the  Boston  Court  of  Common  Pleas,  but  after  a  month's 


224 


JUDICIAL  HISTORY 


service  resigned.  He  married  Louisa,  daughter  of 
Daniel  Davis,  Solicitor  General  of  the  Commonwealth, 
and  died  in  Boston,  June  2,  1873. 

William  Prescott,  son  of  Col.  William  Prescott,  was 
born  at  Pepperell,  Mass.,  August  19,  1762,  and  gradu- 
ated at  Harvard  in  1783.  He  studied  law  with  Nathan 
Dane  of  Beverly,  and  was  admitted  to  the  bar  in  1787. 
He  practiced  first  in  Beverly  and  afterwards  in  Salem 
until  1808,  when  he  removed  to  Boston.  He  was  a  Rep- 
resentative from  Salem  and  Senator  from  Essex  County. 
He  was  appointed  April  21,  1818,  to  succeed  William 
Minot  as  Judge  of  the  Boston  Court  of  Common  Pleas. 
He  served  until  May  11,  1819,  when  he  resigned.  He 
was  a  member  of  the  Hartford  Convention  in  1814  and 
in  1820  a  member  of  the  State  Constitutional  Conven- 
tion. He  received  the  degree  of  LL.  D.  from  Harvard 
in  1824,  and  died  in  Boston,  December  8,  1844. 

Artemas  Ward,  appointed  May  11,  1819,  Judge  of 
the  Boston  Court  of  Common  Pleas,  will  be  noticed  as 
Chief  Justice  of  the  Court  of  Common  Pleas  for  the 
Common  wealth. 

MUNICIPAL  COURT  IN  THE  TOWN  OF  BOSTON. 

George  Richards  Minot  has  been  noticed  as  Judge  of 
the  Suffolk  County  Court  of  Common  Pleas. 

Thomas  Dawes  has  been  noticed  as  Judge  of  the  Su- 
preme Judicial  Court. 

Josiah  Quincy,  son  of  Josiah  and  Abigail  (Phillips) 
Quincy,  was  born  in  Boston,  February  4,  1772,  and 
graduated  at  Harvard  in  1790.  He  studied  law  with 
William  Tudor,  and  at  a  meeting  of  the  Suffolk  bar, 
held  July  9,  1793,  it  was  voted  that  he  be  "recom- 
mended to  the  Court  of  Common  Pleas  for  the  oath  of 
an  Attorney  of  that  Court."  He  was  a  Senator  in  1804, 
and  member  of  Congress  from  1805  to  1813.    In  a 


OF  MASSACHUSETTS. 


225 


speech  delivered  in  Congress,  January  4,  1811,  against 
the  admission  of  Louisiana  as  a  State,  he  announced  for 
the  first  time  the  doctrine  of  secession.  He  said :  "  I 
am  compelled  to  declare  it  as  my  deliberate  opinion 
that  if  this  bill  passes,  the  bonds  of  this  Union  are  vir- 
tually dissolved ;  that  the  States  which  compose  it  are 
free  from  their  moral  obligations,  and  that  as  it  will  be 
the  right  of  all,  so  it  will  be  the  duty  of  some,  to  prepare 
definitely  for  a  departure,  amicably  if  they  can,  vio- 
lently if  they  must."  He  was  again  a  Senator  in  1814, 
serving  until  1821.  In  1821-22  he  was  Speaker  of  the 
House  of  Representatives,  and  on  the  16th  of  January, 
1822,  he  was  appointed  Judge  of  the  Municipal  Court 
in  the  town  of  Boston.  He  was  a  delegate  to  the 
State  Constitutional  Convention  in  1S20,  and  in  1823 
resigned  his  seat  on  the  bench.  From  1823  to  1828  he 
was  Mayor  of  Boston,  and  on  the  15th  of  January,  1829, 
he  was  chosen  President  of  Harvard  College,  and  con- 
tinued in  office  until  1845.  He  married,  June  6,  1797, 
Eliza  Susan,  daughter  of  John  Morton  of  New  York,  a 
descendant  of  George  Morton  who  came  to  Plymouth 
in  the  Ann  in  1623.  He  received  the  degree  of  A.  M. 
from  Yale  in  1792,  and  LL.  D.  from  Harvard  in  1824, 
and  died  in  Quincy,  July  1,  1864. 

Peter  Oxen  bridge  Thacher,  son  of  Rev.  Peter  Thacher, 
was  born  in  Maiden,  December  22, 1776,  and  graduated 
at  Harvard  in  1796.  He  was  admitted  to  the  Suffolk 
bar  in  1801,  and  May  14, 1823,  was  appointed  Judge  of 
the  "  Municipal  Court  in  the  Town  of  Boston,"  serving 
until  his  death  in  Boston,  February  22,  1843. 

SUPERIOR  COURT  OF  THE  COUNTY  OF  SUFFOLK. 

Albert  Hobart  Nelson,  son  of  Dr.  John  and  Lucinda 
(Parkhurst)    Nelson,  was  born  in   Milford,  Mass., 
March  12,  1812,  and  graduated  at  Harvard  in  1832. 
15 


226 


JUDICIAL  HISTORY 


He  studied  law  with  Samuel  Hoar  of  Concord  and  at  the 
Harvard  Law  School  from  which  he  graduated  in  1837. 
He  began  practice  in  Concord  but  in  1842  moved  to 
Woburn  and  opened  an  office  in  Boston.  In  1846  he 
was  appointed  District  Attorney  for  the  Middlesex  and 
Essex  District,  in  1855  was  a  member  of  the  Council 
and  in  1848-49  was  a  Senator.  He  was  appointed,  Octo- 
ber 13,  1855,  Chief  Justice  of  the  "  Superior  Court  of 
the  County  of  Suffolk,"  and  resigned  in  1858.  He 
married  in  September,  1840,  Elizabeth  B.,  daughter  of 
Elias  Phinney  of  Lexington,  Mass.,  and  died  at  the 
McLean  Asylum,  June  27,  1858. 

•  Josiah  Gardner  Abbott,  son  of  Caleb  and  Mercy 
(Fletcher)  Abbott,  was  born  in  Chelmsford,  Mass., 
November  1,  1815,  and  graduated  at  Harvard  in  1832. 
He  studied  law  with  Nathaniel  Wright  and  Amos 
Spaulding  in  Lowell  and  at  the  Harvard  Law  School 
and  was  admitted  to  the  bar  in  December,  1835.  He 
began  practice  in  Lowell  as  a  partner  with  Mr.  Spauld- 
ing and  in  1840  formed  a  partnership  with  Samuel 
Appleton  Brown.  He  was  appointed  October  13, 1855, 
Judge  of  the  Superior  Court  of  the  County  of  Suffolk 
but  resigned  in  1858.  After  leaving  the  bench  he 
opened  an  office  in  Boston  and  in  1860  he  was  offered  a 
seat  on  the  bench  of  the  Supreme  Judicial  Court  which 
he  declined.  In  1837  he  was  a  Representative,  in 
1842-43  a  Senator,  in  1840  a  member  of  the  staff  of 
Governor  Marcus  Morton,  in  1853  a  member  of  the 
Constitutional  Convention,  and  in  1875-76  a  member  of 
Congress.  He  was  also  several  times  the  Democratic 
candidate  for  Governor  and  United  States  Senator.  He 
married  July  18,  1838,  Caroline,  daughter  of  Edward 
St.  Loe  Livermore,  Chief  Justice  of  the  Supreme  Court 
of  New  Hampshire.  He  received  the  decree  of  LL.  D. 
from  Williams  in  1862  and  died  in  Boston,  June  6, 1891. 


OF  MASSACHUSETTS. 


227 


Stephen  G.  Nash,  son  of  John  and  Abigail  (Gordon) 
Nash,  was  born  in  New  Hampton,  N.  H.,  April  4, 1822, 
and  graduated  at  Dartmouth  in  1842.  He  studied  law 
with  George  W.  Nesmith  in  Franklin,  N.  H.,  and  was 
admitted  to  the  Suffolk  bar  April  16,  1846.  He  was 
a  Representative  from  Boston  and  October  13,  1855, 
was  appointed  Judge  of  the  Superior  Court  of  the  County 
of  Suffolk.  He  married  Mary  Upton  at  Wakefield  in 
1866  and  died  in  Lynnfield,  Mass.,  May  2,  1S94. 

Charles  Phelps  Huntington,  son  of  Rev.  Dana  and 
Elizabeth  W.  (Phelps)  Huntington  was  born  in  Litch- 
field, Conn.,  May  24,  1802,  and  graduated  at  Harvard 
in  1822.  He  studied  law  at  the  Law  School  in  North- 
ampton and  was  admitted  to  the  Hampshire  bar.  He 
began  practice  in  Northampton,  removed  to  Boston  and 
October  13,  1855,  was  appointed  Judge  of  the  Superior 
Court  of  the  County  of  Suffolk.  He  married,  first,  Helen 
Sophia  Mills  who  died  March  3, 1844,  and  second,  Janu- 
ary 2,  1847,  Ellen,  daughter  of  David  Greenough.  He 
died  in  Boston,  January  30,  1868. 

Marcus  Morton,  Jr.,  has  been  noticed  as  Chief  Justice 
of  the  Supreme  Judicial  Court. 

Charles  Allen,  Chief  Justice  of  the  Superior  Court  of 
the  County  of  Suffolk,  will  be  noticed  as  Chief  Justice  of 
the  Superior  Court  for  the  Commonwealth. 

BOSTON  POLICE  AND  JUSTICE'S  COURT. 

Benjamin  Whitman  son  of  Zechariah  and  Abigail 
(Kilborn)  Whitman  was  born  in  Bridge  water  in  1768, 
and  graduated  at  Brown  in  1788.  He  established  him- 
self in  Hanover,  Mass.,  after  his  admission  to  the  bar  in 
Boston,  but  returned  to  Boston  in  1805,  from  which 
town  he  was  a  Representative.  He  was  appointed 
June  10, 1822,  Chief  Justice  of  the  Boston  Police  Court, 
and  died  in  Boston,  August  31,  1840. 


228 


JUDICIAL  HISTORY 


William  Simmons  was  probably  born  in  Scituate,  about 
1T82,  and  graduated  at  Harvard  in  1804.  He  was  a 
member  of  the  Suffolk  bar  certainly  as  early  as  1811, 
and  was  appointed  June  10,  1822,  Judge  of  the  Boston 
Police  Court.  He  married  in  1810,  Lucia,  daughter  of 
Abraham  Hammatt  of  Plymouth  and  died  in  Boston, 
June  17,  1843. 

Henry  Orne  was  admitted  to  the  Suffolk  bar  in  De- 
cember, 1816,  and  was  appointed  June  10,  1822,  Judge 
of  the  Boston  Police  Court. 

John  Gray  Rogers  was  born  in  Boston  and  graduated 
at  Harvard  in  1814.  He  studied  law  with  William  Sul- 
livan and  was  admitted  to  the  Suffolk  bar  in  October, 
1817.  He  was  appointed  August  10, 1831,  Judge  of  the 
Boston  Police  Court  and  remained  on  the  bench  until 
the  Court  was  abolished  May  29,  1866.  He  died  in 
1875. 

James  dishing  Merrill,  son  of  Rev.  Giles  and  Lucy 
(Cushing)  Merrill,  was  born  in  Haverhill,  Mass.,  Sep- 
tember 27,  1784,  and  graduated  at  Harvard  in  1807. 
He  studied  law  with  John  Varnum  of  Haverhill,  and 
was  admitted  to  the  Essex  bar  at  Salem  in  September, 
1812,  and  to  the  Suffolk  bar  in  March,  1815.  He  was 
appointed,  February  10,  1834,  Judge  of  the  Boston 
Police  Court,  and  resigned  in  1852.  He  was  a  Repre- 
sentative and  Senator,  and  a  Greek  scholar  of  high  at- 
tainments. He  married,  November  28,  1820,  Anna, 
daughter  of  Dr.  Nathaniel  Saltonstall  of  Haverhill,  and 
died  in  Boston,  October  4,  1853. 

Abel  Cushing  graduated  at  Brown  in  1810,  and 
studied  law  with  Ebenezer  Gay  of  Hingham.  He  was 
admitted  to  the  Plymouth  County  bar,  and  settled  in 
Dorchester  where  he  continued  in  practice  until  June  30, 
1843,  when  he  was  appointed  one  of  the  Justices  of  the 
Boston  Police  Court.    He  died  in  1866. 


OF  MASSACHUSETTS. 


229 


Thomas  Kussell  will  be  noticed  as  a  Judge  of  the  Su- 
perior Court  for  the  Commonwealth. 

Sebeus  C.  Maine  was  admitted  to  the  Suffolk  bar, 
February  3,  1845,  and  was  appointed  to  the  Boston 
Police  Court,  November  3, 1858.  He  died  in  Stoughton, 
April  25,  1887. 

George  Duncan  Wells  was  born  in  Greenfield,  Mass., 
and  graduated  at  Williams  in  1846.  He  graduated  at 
the  Harvard  Law  School  in  1848,  and  practiced  in  Bos- 
ton until  his  appointment  to  the  bench  of  the  Boston 
Police  Court,  May  31,  1S59.  He  resigned  his  seat  in 
the  early  part  of  the  war  and  entered  the  service  and 
died  in  Strasburg,  Ya.,  October  13,  1864. 

Edwin  Wright,  son  of  Jesse  and  Philura  (Fuller) 
Wright  was  born  in  North  Coventry,  Conn.,  March  7, 
1S21,  and  graduated  at  Yale  in  1844.  After  teaching 
school  for  a  time  he  studied  law  at  the  Harvard  Law 
School  and  in  the  office  of  Benjamin  F.  Brooks  in  Bos- 
ton, and  was  admitted  to  the  Suffolk  bar  in  January, 
1850.  He  was  a  Kepresentative  from  Boston  in  1857 
and  1867,  and  a  member  of  the  Boston  School  Board. 
On  the  9th  of  July,  1861,  he  was  appointed  one  of  the 
Justices  of  the  Boston  Police  Court,  and  served  until 
the  Court  was  abolished  in  1866.  He  married  Octo- 
ber 29,  1850,  Helen  M.,  daughter  of  Paul  Curtis  of 
Boston,  and  died  in  Boston,  January  21,  1899. 

MUNICIPAL  COURT  OF  THE  CITY  OF  BOSTON. 

John  William  Bacon,  appointed  Chief  Justice  July  2, 
1866,  will  be  noticed  as  a  Judge  of  the  Superior  Court 
for  the  Commonwealth. 

Francis  William  Hurd  graduated  at  Harvard  in 
1852  and  was  admitted  to  the  Suffolk  bar  October  2, 
1855.  He  was  appointed  July  2,  1866,  Associate  Jus- 
tice of  the  Municipal  Court  of  the  City  of  Boston,  and 


230 


JUDICIAL  HISTORY 


is  now  at  the  head  of  a  commission  on  the  revision  of 
the  laws. 

Mellen  Chamberlain,  son  of  Moses  and  Mary  (Foster) 
Chamberlain,  was  born  in  Pembroke,  N.  H.,  June  4, 
1821,  and  graduated  at  Dartmouth  in  1844.  He  gradu- 
ated at  the  Harvard  Law  School  in  1849  and  began  prac- 
tice in  Boston.  He  was  a  representative  in  1858-59  and 
Senator  in  1863-64,  and  on  the  29th  of  June,  1866,  he 
was  appointed  Associate  Justice  of  the  Municipal  Court 
of  the  city  of  Boston,  and  December  1,  1871,  Chief  Jus- 
tice. In  October,  1S78,  he  was  appointed  Librarian  of 
the  Boston  Public  Library,  and  served  until  1891,  when 
he  resigned.  Since  his  resignation  he  has  devoted  him- 
self to  literary  pursuits.  He  married,  June  6,  1849, 
Martha  Ann,  daughter  of  Col.  Jesse  and  Elizabeth  (Mer- 
riam)  Putnam  of  Danvers  and  died  in  Chelsea  June  25, 
1900. 

Joseph  McKean  Churchill,  son  of  Asaph  and  Mary 
(Gardner)  Churchill,  was  born  in  Milton,  Mass.,  April  29, 
1821,  and  graduated  at  Harvard  in  1840.  He  graduated 
at  the  Harvard  Law  School  in  1845  and  was  admitted  to 
the  Suffolk  bar  in  1845.  He  was  an  Overseer  of  Har- 
vard from  1856  to  1858,  Representative  in  1858-59, 
Councillor  in  1860,  member  of  the  Constitutional  Con- 
vention of  1853,  Captain  of  Co.  B,  45th  Massachusetts 
Regiment  in  the  war  of  1861,  and  was  appointed  March  3, 
1871,  Associate  Justice  of  the  Municipal  Court  of  the 
city  of  Boston.  He  married  Augusta  Phillips  Gardner, 
and  died  in  Milton,  March  23,  1886. 

"William  Ellison  Parmenter,  son  of  William  and  Mary 
(Parker)  Parmenter,  was  born  in  Boston  March  12, 
1816,  and  graduated  at  Harvard  in  1836.  He  studied 
law  with  John  Mills,  United  States  District  Attorney 
at  Boston,  and  at  the  Harvard  Law  School,  and  was 
admitted  to  the  Suffolk  bar  April  1, 1842.    He  was  ap- 


OF  MASSACHUSETTS. 


231 


pointed  Associate  Justice  of  the  Municipal  Court  De- 
cember 12,  1871,  and  Chief  Justice  January  24,  1883, 
and  is  still  on  the  bench.  He  married  Helen  James  of 
South  Scituate,  now  Nor  well,  June  30,  1843. 

John  Wilder  May  was  admitted  to  the  Suffolk  bar 
September  1,  1851,  and  was  appointed  Chief  Justice  of 
the  Municipal  Court  October  12, 1878,  and  died  in  Dor- 
chester, January  11,  1883. 

William  Josiah  Forsaith,  son  of  Josiah  and  Maria 
(Southworth)  Forsaith  was  born  in  Newport,  NT.  H., 
April  19,  1836,  and  graduated  at  Dartmouth  in  1857. 
He  studied  law  with  Burke  &  Wait  in  Newport,  and  in 
Boston  in  the  offices  of  Benjamin  F.  Hallett  and  Ranney 
&  Morse,  and  was  admitted  to  the  Suffolk  bar  in  1860. 
He  was  appointed  Special  Justice  of  the  Municipal  Court 
of  the  city  of  Boston,  January  23,  1872,  and  Associate 
Justice  March  9,  1882,  and  is  still  on  the  bench.  He 
married  October  31, 1865,  Annie  Maria  Yeazie  of  Ban- 
gor, Maine. 

Matthew  James  McCafferty  was  born  in  Ireland  in 
1829.  He  studied  law  in  Lowell  and  was  admitted  to 
the  Middlesex  bar  in  March,  1857.  He  practiced  first 
in  Lowell,  afterwards  in  Worcester  and  was  appointed 
Judge  of  the  Boston  Municipal  Court  January  24, 1883. 
He  died  in  Boston,  May  5,  1885. 

George  Zaccheus  Adams,  son  of  Charles  and  Mary 
(Robbins)  Adams  was  born  in  Chelmsford,  Mass.,  April 
23, 1833,  and  graduated  at  Harvard  in  1856.  He  studied 
law  in  the  office  of  Oliver  Stevens  in  Boston  and  at  the 
Harvard  Law  School  and  was  admitted  to  the  Suffolk 
bar,  January  26,  1858.  He  was  appointed  August  4, 
1S82,  Special  Justice  of  the  Boston  Municipal  Court  and 
October  1,  1896,  Associate  Justice.  He  married  Sep- 
tember 16, 1861,  Joanna  F.  daughter  of  Charles  and  Joan 
F.  (Hagar)  Davenport  and  is  now  on  the  bench. 


232 


JUDICIAL  HISTORY 


John  Henry  Hard}',  son  of  John  and  Hannah  (Farley) 
Hardy  was  born  in  Hollis,  K  H.,  February  2, 1847,  and 
graduated  at  Dartmouth  in  1870.  He  studied  law  at 
the  Harvard  Law  School  and  in  the  office  of  Kobert  M. 
Morse  of  Boston  and  was  admitted  to  the  Suffolk  bar 
in  January,  1872.  He  associated  himself  in  practice 
with  George  W.  Morse  of  Boston  and  with  Samuel  J. 
Elder  and  Thomas  W.  Proctor,  and  June  3,  1885,  was 
appointed  Associate  Justice  of  the  Boston  Municipal 
Court.  He  served  in  the  war  of  1861  and  was  a  Rep- 
resentative from  Arlington,  Mass.,  in  1883.  He  married 
August  30,  1871,  Anna  J.,  daughter  of  Levi  and  Anna 
(Whitney)  (Mead)  Conant  in  Littleton. 

Benjamin  R.  Curtis,  son  of  Judge  Benjamin  R.  Curtis, 
was  born  in  Boston  in  June,  1855,  and  graduated  at  Har- 
vard in  1875.  He  studied  law  at  the  Harvard  Law 
School  and  in  Boston  in  the  office  of  Albert  Mason  and 
was  admitted  to  the  bar  at  Plymouth  in  June,  1878.  In 
1881  he  was  a  lecturer  in  the  Boston  University  Law 
School  and  April  28, 1886,  was  appointed  Associate  Jus- 
tice of  the  Boston  Municipal  Court.  He  married  in  1877 
Mary  G.  daughter  of  Professor  Horsford  of  Cambridge, 
and  died  in  Boston,  January  25,  1891. 

Frederick  D.  Ely,  son  of  Nathan  and  Amelia  Maria 
(Partridge)  Ely,  was  born  in  Wrentham,  Mass.,  Septem- 
ber 21,  1838,  and  graduated  at  Brown  in  1859.  He 
studied  law  in  the  office  of  Waldo  Colburn  of  Dedham, 
and  was  admitted  to  the  Norfolk  bar  in  October,  1862. 
He  was  a  Representative  from  Dedham  in  1873,  a  Senator 
in  1878-79,  and  a  member  of  the  Forty-ninth  Congress. 
He  was  appointed  October  10,  1888,  Associate  Justice 
of  the  Municipal  Court  of  the  city  of  Boston  and  is  now 
on  the  bench.  He  married,  first,  in  Boston,  December  6, 
1866,  Eliza,  daughter  of  Seth  and  Harriet  E.  (Rice) 
Whittin,  and  second,  at  Dedham,  August  10,  1885, 
Anna,  daughter  of  Lyman  and  Olive  Emerson. 


OF  MASSACHUSETTS. 


233 


John  H.  Burke,  son  of  John  and  Tvlary  Burke,  was 
born  in  Chelsea,  September  6,  1856.  He  was  educated 
at  the  public  schools  and  at  Boston  College  and  gradu- 
ated at  Boston  University  Law  School  in  1877.  He 
afterwards  studied  in  the  office  of  Patrick  A.  Collins 
and  was  admitted  to  the  Suffolk  bar  in  October,  1878. 
He  was  appointed  February  11,  1891,  Associate  Justice 
of  the  Municipal  Court  of  the  City  of  Boston  and  is  now 
on  the  bench.    He  married  Mary  E.  Ford  of  Boston. 

John  F.  Brown  was  born  in  Douglas,  Mass.,  March  20, 
1818,  and  was  admitted  to  the  Suffolk  bar  in  July,  1874. 
He  was  a  Eepresentative  in  1887-88,  and  was  appointed 
May  31, 1894,  Associate  Justice  of  the  Municipal  Court, 
serving  still  on  the  bench. 

Henry  Sweetser  Dewey,  son  of  Israel  Otis  and 
Susan  Augusta  (Sweetser)  Dewey,  was  born  in 
Hanover,  ]ST.  H.,  November  9,  1856,  and  graduated  at 
Dartmouth,  in  1878.  He  studied  law  in  the  Boston  Uni- 
versity Law  School  and  in  the  office  of  Ambrose  A. 
Ranney  in  Boston,  and  was  admitted  to  the  Suffolk  bar 
in  June,  1882.  He  was  a  member  of  the  Boston  Com- 
mon Council  from  1885  to  1887,  a  Representative  from 
1889  to  1891,  and  was  appointed  October  9,  1896,  Spe- 
cial Justice  of  the  Municipal  Court  of  the  city  of  Boston 
and  May  17,  1899,  Associate  Justice. 

George  Littlefield  Wentworth,  son  of  Stacy  H.  and 
Rebecca  L.  Wentworth,  was  born  in  Ellsworth,  Maine, 
May  24, 1852,  and  studied  law  at  the  Boston  University 
Law  School.  He  was  admitted  to  the  Middlesex  bar  at 
Cambridge  in  October,  1881,  and  was  appointed  Octo- 
ber 2,  1896,  Special  Justice  of  the  Municipal  Court  of 
the  city  of  Boston  and  May  17,  1899,  Associate  Justice. 
He  is  now  on  the  bench. 

John  A.  Bennett,  son  of  Alvin  W.  and  Mary  Holman 
Bennett,  was  born  in  Wilbraham,  Mass.,  October  23, 


231 


JUDICIAL  HISTORY 


1848,  and  graduated  at  Amherst  in  1873.  He  studied  law 
at  the  Boston  University  Law  School,  and  in  the  office 
of  George  S.  Hillard  of  Boston,  and  was  admitted  to  the 
Suffolk  bar  in  June,  1876.  He  has  been  Public  Admin- 
istrator for  Suffolk  County,  and  May  26,  1899,  was  ap- 
pointed Special  Justice  of  the  Municipal  Court  of  the 
city  of  Boston,  and  is  still  serving.  He  married  Julia 
R.  Smith  of  South  Hadley,  December  25,  1877. 

William  Sullivan  graduated  at  Harvard  in  1878,  and 
was  admitted  to  the  Suffolk  bar  in  1882.  He  was  ap- 
pointed, May  26,  1S99,  Special  Justice  of  the  Municipal 
Court  of  the  city  of  Boston  and  is  now  on  the  bench. 

Returning  now  from  the  digression  into  which  this 
narrative  has  been  led  for  the  purpose  of  considering 
courts  which  more  particularly  concerned  either  the 
city  of  Boston  or  the  county  of  Suffolk,  it  will  be  re- 
membered that  it  has  been  stated  that  two  Acts  were 
passed  July  3,  1782,  establishing  the  Supreme  Judicial 
Court  and  the  County  Courts  of  Common  Pleas. 

There  was  another  Court  called  the  Court  of  General 
Sessions  of  the  Peace  Avhich  had  continued  practically 
unchanged  since  May  31, 1699,  which  was  reestablished 
by  an  Act  passed  July  3, 1782.  The  Act  provided  that 
there  shall  be  held  in  each  County  a  Court  of  General 
Sessions  of  the  Peace  by  the  Justices  of  each  County  to 
hear  and  determine  all  matters  relative  to  the  conserva- 
tion of  the  peace,  cognizable  by  them  at  common  law. 
An  Act  was  passed  June  19, 1807,  providing  that  it  should 
consist  of  one  Chief  Justice  and  a  specified  number  of 
Associates  for  the  several  Counties  who  were  to  act  as 
the  General  Court  of  Sessions,  and  on  the  19th  of  June, 
1809,  the  jurisdiction  of  the  General  Court  of  Sessions  was 
transferred  to  the  County  Court  of  Common  Pleas,  and 
on  the  25th  of  June,  1811,  an  Act  was  passed  providing 
"  that  from  and  after  the  first  day  of  September  next,  an 


OF  MASSACHUSETTS. 


235 


Act  made  and  passed  the  19th  of  June,  1809,  entitled 
'  An  Act  to  transfer  the  powers  and  duties  of  the  Courts 
of  Sessions  to  the  Courts  of  Common  Pleas '  be  and  the 
same  is  hereby  repealed,  and  that  all  Acts  and  parts  of 
Acts  relative  to  the  Courts  of  Sessions  which  were  in 
force  at  the  time  the  Act  was  in  force  which  is  hereby 
repealed,  be  and  the  same  are  hereby  revived  from  and 
after  the  said  first  day  of  September  next." 

On  the  2Sth  of  February,  1814,  it  was  enacted  that 
the  Act  of  June  25, 1811,  reviving  the  Courts  of  Sessions, 
be  repealed  except  so  far  as  it  relates  to  the  counties  of 
Suffolk,  Nantucket  and  Dukes  County,  and  that  all  pe- 
titions, recognizances,  warrants,  orders,  certificates,  re- 
ports and  processes  made  to,  taken  from,  or  continued 
or  returnable  to  the  Courts  of  Sessions  in  the  several 
counties,  except  as  aforesaid,  shall  be  returnable  to 
and  proceeded  in  and  determined  by  the  respective  Cir- 
cuit Courts  of  Common  Pleas,  which  were  established, 
as  has  already  been  stated,  on  the  21st  of  June,  1811. 
It  further  provided  that  from  and  after  the  first  da}^  of 
June  next,  the  Circuit  Courts  of  Common  Pleas  shall 
have,  exercise  and  perform  all  powers,  authorities  and 
duties  which  the  respective  Courts  of  Sessions  have,  be- 
fore the  passage  of  the  Act,  exercised  and  performed, 
except  in  the  counties  of  Suffolk,  Xantucket  and  Dukes 
County. 

The  management  of  county  affairs  rested  with  the 
Circuit  Courts  of  Common  Pleas  until  February  20, 
1S19,  when  it  was  enacted  that  "  from  and  after  the  first 
day  of  June  next  '  An  Act  to  transfer  the  powers  and 
duties  of  the  Courts  of  Sessions  to  the  Circuit  Courts  of 
Common  Pleas '  passed  on  the  28th  of  February,  1814, 
be  hereby  repealed.  And  it  was  further  provided  that 
from  and  after  the  first  day  of  June  next  the  Court  of 
Sessions  in  the  several  counties  shall  be  held  by  one 


236 


JUDICIAL  HISTORY 


Chief  Justice  and  two  Associate  Justices  to  be  appointed 
by  the  Governor  with  the  advice  and  consent  of  the 
Council,  who  shall  have  all  the  powers,  rights  and  privi- 
leges, and  be  subject  to  all  the  duties  which  are  now 
vested  in  the  Circuit  Courts  of  Common  Pleas,  relative 
to  the  erection  and  repairs  of  jails  and  other  county 
buildings,  the  allowance  and  settlement  of  county  ac- 
counts, the  estimate,  apportionment  and  issuing  war- 
rants for  assessing  county  taxes,  granting  licenses,  laying 
out,  altering  and  discontinuing  highways,  and  appoint- 
ing committees  and  ordering  juries  for  that  purpose." 

The  Court  of  Sessions  continued  in  the  management 
of  county  affairs  until  March  4, 1826,  when  that  part  of 
its  duties  which  related  to  highways  was  vested  bylaw 
in  a  board  called  "  Commissioners  of  Highways."  This 
board  was  composed  of  five  in  each  county,  except 
Barnstable  and  Dukes  County,  in  each  of  which  it  was 
composed  of  three,  and  Suffolk  and  Nantucket,  in  which 
there  were  none.  The  doings  of  the  Commissioners 
were  reported  to  the  Court  of  Sessions  for  record. 

On  the  26th  of  February,  1828,  an  Act  was  passed 
providing  "  that  the  Act  entitled  '  An  Act  to  establish 
Courts  of  Sessions,'  passed  on  the  20th  of  February, 
1819,  also  an  Act  entitled  in  addition  thereto  passed  on 
the  21st  of  February,  1820;  also  . an  Act  entitled,  '  An 
Act  increasing  the  numbers  and  extending  the  powers 
of  Justices  of  the  Courts  of  Sessions,'  passed  on  the  6th 
of  February,  1822;  also  an  Act  entitled  '  An  Act  in 
addition  to  an  Act  directing  the  method  of  laying  out 
highways,'  passed  on  the  4th  of  March,  1826,  be  and 
the  same  are  hereby  repealed."  The  same  Act  provided 
for  the  appointment  of  County  Commissioners,  and  the 
duties  imposed  on  them  are  beyond  the  scope  of  a  Ju- 
dicial history. 

The  Judges  of  the  General  Sessions  of  the  Peace  and 


OF  MASSACHUSETTS. 


237 


of  its  successor,  the  Court  of  Sessions,  in  the  various 
counties  after  its  reorganization  in  1807  were,  as  far  as 
the  writer  has  been  able  to  discover  them,  as  follows : 

BARNSTABLE  COUNTY. 

John  Davis,  appointed  1807,  Chief  Justice,  1807 ; 
James  Freeman,  appointed  1807;  John  Freeman,  ap- 
pointed 1807  ;  Nathaniel  Freeman,  appointed  1808,  Chief 
Justice ;  Joseph  Dimmock,  appointed  1808 ;  Samuel  Free- 
man, appointed  1811 ;  Isaiah  L.  Green,  appointed  1811 ;. 
Solomon  Freeman,  appointed  1811 ;  Samuel  P.  Crowell, 
appointed  1819,  Chief  Justice,  1819 ;  Elijah  Cobb,  ap- 
pointed 1819  ;  Elisha  Doane,  appointed  1819  ;  Meletiah 
Bourne,  appointed  1822,  Special  Justice;  N.  Crocker, 
appointed  1822,  Special  Justice. 

BERKSHIRE  COUNTY. 

Nathaniel  Bishop,  appointed  1807,  Chief  Justice;. 
Joshua  Danforth,  appointed  1807,  Chief  Justice,  1808 ; 
Adonijah  Bid  well,  appointed  1807 ;  Samuel  H.  Wheeler, 
appointed  1807 ;  Azariah  Egleston,  appointed  1808 ; 
William  Towner,  appointed  1808 ;  William  Walker,  ap- 
pointed 1811 ;  Thomas  Allen,  appointed  1819,  Chief 
Justice,  1819 ;  Joseph  Whiton,  appointed  1819 ;  Wol- 
cott  Hubbell,  appointed  1819 ;  William  P.  Walker,  ap- 
pointed 1820,  Chief  Justice,  1820 ;  Moses  Hopkins,  ap- 
pointed 1822 ;  Special  Justice ;  Douglas  W.  Sloane, 
appointed  1852,  Special  Justice. 

BRISTOL  COUNTY. 

Josiah  Dean,  appointed  1807,  Chief  Justice ;  Nathl. 
Morton,  Jr.,  appointed  1807 ;  Elihu  Slocum,  appointed 
1807 ;  Daniel  Perry,  appointed  1807 ;  Samuel  Guild, 
appointed  1807 ;  Jones  Godfrey,  appointed  1807 ;  Seth 
Washburn,  appointed  1811 ;  Laban  Wheaton,  appointed 


1 


238  JUDICIAL  HISTORY 

1819,  Chief  Justice;  Apollos  Tobey,  appointed  1819; 
Jonathan  Ingall,  appointed  1822,  Special  Justice. 

DUKES  COUNTY. 

Benjamin  Bassett,  appointed  1807,  Chief  Justice; 
John  Davis,  appointed  1807 ;  Ichabod  Norton,  ap- 
pointed 1807 ;  Thomas  Dunham,  appointed  1810 ;  Mat- 
thew Mayhew,  appointed  1812,  Chief  Justice,  1812; 
William  Davis,  appointed  1826. 

ESSEX  COUNTY. 

Nathan  Dane,  appointed  1807,  Chief  Justice ;  Thomas 
Kittridge,  appointed  1807;  Wra,  Pearson,  appointed 
1807 ;  John  Punchard,  appointed  1807 ;  Josiah  Smith, 
appointed  1807 ;  Samuel  Holten,  appointed  1807,  Chief 
Justice,  1807 ;  Wm.  Cleaveland,  appointed  1808 ;  Henry 
Atkins,  appointed  1808 ;  John  Saunders,  appointed  1808 ; 
Henry  Elkins,  appointed  1811 ;  John  Prince,  Jr.,  ap- 
pointed 1811;  Joseph  Fallon,  3d,  appointed  1811 ;  John 
Heard,  appointed  1819,  Chief  Justice,  1819 ;  Nehemiah 
Cleaveland,  appointed  1819,  Chief  Justice,  1820  ;  Lonson 
Nash,  appointed  1820  ;  Hobart  Clark,  appointed  1821 ; 
Robert  Rantoul,  appointed  1822  ;  Stephen  W.  Marston, 
appointed  1822 ;  John  Merrill,  appointed  1827 ;  John 
Walsh,  appointed  1827. 

FRANKLIN  COUNTY. 

Job  Goodale,  appointed  1811,  Chief  Justice;  Medad 
Alexander,  appointed  1811,  Chief  Justice,  1812;  Eben- 
ezer  Arms,  appointed  1811 ;  Caleb  Hubbard,  appointed 
1811 ;  Joshua  Green,  appointed  1811 ;  Jerome  Ripley, 
appointed  1812;  Elijah  Paine,  appointed  1819;  Asa 
Stebbins,  appointed  1819 ;  Elihu  Hoyt,  appointed  1822 ; 
John  Nevens  appointed  1825. 


OF  MASSACHUSETTS. 


239 


HAMPDEN  COUNTY. 

Samuel  Fowler,  appointed  1812,  Chief  Justice  ;  Gideon 
Burt,  appointed  1812;  Isaac  Coit,  appointed  1812; 
Joshua  Frost,  appointed  1812 ;  Abel  Bliss,  Jr.,  appointed 
1812  ;  Samuel  Lothrop,  appointed  1813,  Chief  Justice, 
1813 ;  Abner  Brown,  appointed  1813  ;  Sylvester  Em- 
mons, appointed  1813 ;  Heman  Day,  appointed  1813 ; 
Ethan  Ely,  appointed  1811;  William  Ely,  appointed 
1814,  Chief  Justice,  1811;  Stephen  Pynchon,  appointed 
1S19,  Chief  Justice,  1819  ;  Thomas  Day,  appointed  1819  ; 
Jonathan  Dwight,  Jr.,  appointed  1822,  Special  Justice; 
Elijah  Bates,  appointed  1822,  Special  Justice;  James 
Stebbins,  appointed  1823,  Chief  Justice,  1823 ;  James 
Fowler,  appointed  1825  ;  Joseph  Forward,  appointed 
1826. 

HAMPSHIRE  COUNTY. 

Solomon  Smead,  appointed  1807,  Chief  Justice,  1811; 
Medad  Alexander,  appointed  180S  ;  Benjamin  Smith, 
appointed  1808,  Chief  Justice,  1812 ;  Jonathan  Smith,  Jr., 
appointed  1808  ;  Martin  Phelps,  appointed  1808  ;  Gideon 
Burt,  appointed  1808  ;  Erastus  Lyman,  appointed  1S11 ; 
John  Breck,  appointed  1812 ;  Levi  Lyman,  appointed 
1812,  Chief  Justice,  1826;  Henry  Dwight,  appointed 
1812 ;  Solomon  Stoddard,  appointed  1819,  Chief  Jus- 
tice, 1819  ;  Ezra  Starkweather,  appointed  1819 ;  Samuel 
Porter,  appointed  1819  ;  Jonathan  H.  Lyman,  appointed 
1821,  Chief  Justice,  1821 ;  Joseph  Bridgman,  appointed 
1822  ;  Thaddeus  Clapp,  appointed  1822,  Special  Justice; 
Israel  Billings,  appointed  1822,  Special  Justice. 

MIDDLESEX  COUNTY. 

Joseph  B.  Varnum,  appointed  1807,  Chief  Justice; 
Aaron  Hill,  appointed  1807 ;  Amos  Bond,  appointed  1807 ; 


240 


JUDICIAL  HISTORY 


Joseph  Cordis,  appointed  1807;  Joseph  Heald,  1807; 
John  Kettell,  appointed  1808 ;  John  Hart,  appointed 
1811 ;  Ebenezer  Hobbs,  appointed  1812  ;  Joseph  Locke, 
appointed  1819,  Chief  Justice  ;  Abiel  Hey  wood,  ap- 
pointed 1819 ;  Isaac  Fiske,  appointed  1819 ;  Abner 
Bartlett,  appointed  1822,  Special  Justice ;  Jacob  Reeves, 
appointed  1822,  Special  Justice ;  John  Walker,  ap- 
pointed 1814,  Sessions  Justice;  Abiel  Hey  wood,  ap- 
pointed 1814,  Sessions  Justice ;  Joseph  Locke,  appointed 
1814,  Sessions  Justice ;  Loammi  Baldwin,  appointed 
1814,  Sessions  Justice;  Samuel  P.  P.  Fay,  appointed 
1817,  Sessions  Justice;  Isaac  Fiske,  appointed  1817, 
Sessions  Justice. 

NANTUCKET  COUNTY. 

Walter  Folger,  Jr.,  appointed  1807,  Chief  Justice; 
Francis  Macey,  appointed  1807 ;  Daniel  Coffin,  ap- 
pointed 1808 ;  Josiah  Barker,  appointed  1815,  Chief 
Justice;  Benjamin  Coffin,  appointed  1815;  Thaddeus 
Coffin,  appointed  1816 ;  Josiah  Huzzey,  appointed  1818  ; 
William  Coffin,  appointed  1819, Chief  Justice;  Zacheus 
Huzzey,  appointed  1819. 

Nantucket  was  not  included  in  either  of  the  circuits 
for  Circuit  Courts  of  Common  Pleas  and  was  excluded 
from  the  operation  of  the  law  establishing  highway 
commissions.  The  management  of  its  county  affairs 
continued  with  the  Court  of  General  Sessions  of  the 
Peace  and  the  Court  of  Sessions  until  the  establishment 
of  the  Board  of  County  Commissioners  in  1828. 

NORFOLK  COUNTY. 

Ebenezer  Seaver,  appointed  1806,  Chief  Justice ;  Wm. 
Aspinwall,  appointed  1806  ;  John  Ellis,  appointed  1806  ; 
Joseph  Bemis,  appointed  1 806  ;  Samuel  Day,  appointed 
1806;  John  Ellis,  Jr.,  appointed  1808,  Chief  Justice ; 


OF  MASSACHUSETTS. 


241 


Nathaniel  Ruggles,  appointed  180S  ;  Ebenezer  Warren, 
appointed  1813;  Jairus  Ware,  appointed  1819,  Chief 
Justice;  Samuel  Swett,  appointed  1819;  Samuel  P. 
Lord,  appointed  1822  ;  Lewis  Fisher,  appointed  1823, 
Special  Justice ;  John  Endicott,  appointed  1823,  Special 
Justice;  William  Ellis,  appointed  1826,  Chief  Justice. 

PLYMOUTH  COUNTY. 

Charles  Turner,  appointed  1S07,  Chief  Justice  ;  Henry 
Warren,  appointed  1807;  Nathan  Willis,  appointed 
1807 ;  Albert  Smith,  appointed  1807 ;  Howard  Carey, 
appointed  180S ;  Elisha  Ruggles,  appointed  1814 ; 
Joshua  Thomas,  appointed  1819,  Chief  Justice;  John 
Thomas,  appointed  1819;  Nathaniel  M.  Davis,  ap- 
pointed 1821,  Chief  Justice ;  William  Bourne,  ap- 
pointed 1822 ;  Thomas  Hobart,  appointed  1822. 

SUFFOLK  COUNTY. 

William  Denison,  appointed  1807,  Chief  Justice; 
David  Tilden,  appointed  1807;  Russell  Sturgis,  ap- 
pointed 1807 ;  Samuel  Clap,  appointed  1807 ;  Josiah 
Batchelder,  appointed  1808  ;  William  Little,  appointed 
1S12;  Edward  Jones,  appointed  1812;  William  Smith, 
appointed  1814 ;  Benjamin  Rand,  appointed  1819. 

WORCESTER  COUNTY. 

Pliny  Merrick,  appointed  1807,  Chief  Justice ;  John 
Whitney,  appointed  1807 ;  John  Spurr,  appointed  1807 ; 
Abraham  Lincoln,  appointed  1807;  Moses  White,  ap- 
pointed 1807 ;  Jonathan  Davis,  appointed  1808,  Chief 
Justice,  1812;  Edmund  Cushing,  appointed  1811;  Jo- 
seph Adams,  appointed  1811 ;  Timothy  Whiting,  ap- 
pointed 1811;  Isaiah  Thomas,  appointed  1812;  Oliver 
Crosby,  appointed  1814 ;  Seth  Hastings,  appointed  1819, 
Chief  Justice;  Benjamin  Kimball,  appointed  1819; 
16 


242 


JUDICIAL  HISTORY 


Aaron  Tufts,  appointed  1819  ;  Jonas  Kendall,  appointed 
1822;  Jonas  Sibley,  appointed  1822. 

It  will  be  noticed  that  in  the  above  lists  certain  per- 
sons are  named  as  Sessions  Judges.  The  explanation  is 
that  by  the  Act  of  February  28, 1814,  repealing  the  Act 
reviving  the  Court  of  Sessions,  the  Governor  was  au- 
thorized to  appoint  two  persons  in  each  county  to  be 
Sessions  Justices  of  the  Circuit  Court  of  Common  Pleas 
and  to  sit  with  the  Circuit  Judges  in  the  administration 
of  all  matters  within  their  county,  over  which  the 
Court  of  Sessions  had  previously  had  jurisdiction. 
While  the  Court  of  Sessions  in  the  counties  outside  of 
Suffolk  continued  until  February  26,  1828,  the  court  in 
Suffolk  County  was  abolished  February  23, 1822,  at  the 
date  of  the  incorporation  of  Boston  as  a  city. 


CHAPTEE  V. 


COMMONWEALTH  CONTINUED. 

The  experimental  legislation  concerning  the  courts 
below  the  Supreme  Judicial  Court  which  had  continued 
during  forty  years  after  the  adoption  of  the  Constitu- 
tion seems  to  have  reached,  in  1821,  a  partial  solution 
of  the  problem  which  had  puzzled  the  founders  of  our 
judicial  system. 

On  the  14th  of  February,  in  that  year,  an  Act  was 
passed  establishing  the  Court  of  Common  Pleas  for  the 
Commonwealth  and  repealing  the  Acts  establishing 
the  Boston  Court  of  Common  Pleas  and  the  Circuit 
Court  of  Common  Pleas.  It  provided  for  the  ap- 
pointment of  a  Chief  Justice  and  three  Associate 
Justices  with  "  original  and  exclusive  jurisdiction  of  all 
civil  actions  arising  or  happening  within  the  counties 
of  said  Commonwealth  respectively,  excepting  such 
actions  wherein  the  Supreme  Judicial  Court  or  where 
Justices  of  the  Peace  now  have  original  jurisdiction; 
and  shall  also  have  jurisdiction  of  all  such  offences, 
crimes  and  misdemeanors  as  before  the  passing  of  this 
Act  were  cognizable  by  the  Boston  Court  of  Common 
Pleas  and  the  respective  Circuit  Courts  of  Common 
Pleas ;  and  shall  also  have  appellate  jurisdiction  of  all 
civil  actions  and  of  all  crimes  and  offences  where  an 
appeal  may  now  by  law  be  made  to  the  Boston  Court 
of  Common  Pleas  and  the  Circuit  Courts  of  Common 
Pleas  from  the  sentence  or  judgment  of  a  Justice  of 
the  Peace."  Provisions  were  made  in  the  Act  for  the 
times  of  holding  court,  appeals  to  the  Supreme  Judicial 
(243) 


244 


JUDICIAL  HISTORY 


Court,  the  taking  of  exceptions,  new  trials  and  salaries. 
This  court  continued  in  existence  until  abolished  by  an 
Act  passed  April  5,  1859,  establishing  the  present 
Superior  Court.  On  the  1st  of  March,  1843,  the  num- 
ber of  Associate  Justices  was  increased  to  four,  on  the 
18th  of  March,  1845,  to  five,  and  on  the  24th  of  May, 
1851,  to  six. 

The  Judges  of  the  Court  at  various  times  were  as 
follows : 

Artemas  "Ward,  Chief  Justice,  appointed  1821 ;  Solo- 
mon Strong,  Associate,  appointed  1821 ;  John  Mason 
Williams,  Associate,  appointed  1821,  Chief  Justice  1839 ; 
Samuel  Howe,  Associate,  appointed  1821 ;  David  Cum- 
mins, Associate,  appointed  1828 ;  Charles  Henry  War- 
ren, Associate,  appointed  1839 ;  Charles  Allen,  Associate, 
appointed  1 842 ;  Pliny  Merrick,  Associate,  appointed 
1843;  Daniel  Wells,  Chief  Justice,  appointed  1844; 
Joshua  Holyoke  "Ward,  Associate,  appointed  1S44; 
Emory  Washburn,  Associate,  appointed  1844;  Luther 
Stearns  Cushing,  Associate,  appointed  1844 ;  Harrison 
Gray  Otis  Colby,  Associate,  appointed  1845 ;  Charles 
Edward  Forbes,  Associate,  appointed  1847 ;  Edward 
Mellen,  Associate,  appointed  1847,  Chief  Justice  1854; 
George  Tyler  Bigelow,  Associate,  appointed  1848  ;  Jon- 
athan Coggswell  Perkins,  Associate,  appointed  1848 ; 
Horatio  Byington,  Associate,  appointed  1848 ;  Thomas 
Hopkinson,  Associate,  appointed  1848  ;  Ebenezer  Rock- 
wood  Hoar,  Associate,  appointed  1849  ;  Pliny  Merrick, 
Associate,  appointed .1850  ;  Henry  Walker  Bishop,  Asso- 
ciate, appointed  1851 ;  George  Nixon  Briggs,  Associate, 
appointed  1853 ;  George  Patridge  Sanger,  Associate, 
appointed  1854 ;  Henry  Morris,  Associate,  appointed 
1855;  David  Aiken,  Associate,  appointed  1856. 

Artemas  Ward,  the  first  Chief  Justice  of  the  above 
Court,  was  son  of  General  Artemas  Ward,  and  was 


OF  MASSACHUSETTS. 


245 


born  in  Shrewsbury,  Mass.,  January  9,  1762,  and 
graduated  at  Harvard  in  17S3.  He  practiced  in  Shrews- 
bury until  1809,  when  he  removed  to  Boston.  He  was 
Representative,  Councillor,  member  of  Congress  from 
1813  to  1817,  and  Judge  of  the  Boston  Court  of  Com- 
mon Pleas  from  May  11,  1819,  to  February  14,  1821, 
when  that  Court  was  abolished.  He  was  appointed  at 
that  date  Chief  Justice  of  the  Court  of  Common  Pleas 
for  the  Commonwealth  and  resigned  in  1839.  He  re- 
ceived the  degree  of  LL.  D.  from  Harvard  in  1842  and 
died  in  Boston,  October  7,  1847. 

Solomon  Strong,  son  of  Judge  Simeon  Strong,  was 
born  in  Amherst  in  1780  and  graduated  at  Williams. 
He  was  admitted  to  the  bar  in  1800  and  practiced  in 
Royalston,  Athol,  Westminster  and  Leominster.  He 
was  Representative  and  a  member  of  Congress  two 
terms.  He  was  appointed  in  1821  Judge  of  the  Court 
of  Common  Pleas  and  resigned  in  1842  and  died  in 
Leominster  in  1850. 

John  Mason  Williams,  son  of  General  James  Wil- 
liams, was  born  in  New  Bedford,  June  24,  1780,  and 
graduated  at  Brown  in  1801.  He  was  admitted  to  the 
Bristol  County  bar  in  1803  and  after  practicing  for  a 
time  in  New  Bedford  removed  to  Taunton.  He  was  a 
Judge  of  the  Circuit  Court  of  Common  Pleas  for  the 
Southern  Circuit,  and  in  July,  1821,  was  appointed  As- 
sociate Justice  of  the  Common  Pleas  Court.  In  1839 
he  was  made  Chief  Justice  and  resigning  in  1844  was 
appointed  Commissioner  of  Insolvency.  He  received  the 
degree  of  LL.  D.  from  Brown  in  1843  and  from  Har- 
vard in  1845.  He  married  Elizabeth  Otis,  daughter  of 
Lemuel  Williams  and  died  in  JSTew  Bedford,  Decem- 
ber 20,  1868. 

Samuel  Howe  was  appointed  Judge  of  the  Court  of 
Common  Pleas  in  1821  and  served  until  his  death  in 


246 


JUDICIAL  HISTORY 


1828.  He  was  County  Attorney  for  Hampshire  at  the 
time  of  his  appointment. 

David  Cummins,  son  of  David  and  Mehitabel  (Cave) 
Cummins,  was  born  in  Topsfield,  August  14,  1785,  and 
graduated  at  Dartmouth  in  1806.  He  studied  law  with 
Samuel  Putnam  in  Salem  and  was  admitted  to  the  Es- 
sex bar  in  September,  1809.  He  began  practice  in 
Salem,  but  removed  to  Springfield  and  finally  to  Dor- 
chester and  was  appointed  Judge  of  the  Court  of  Com- 
mon Pleas  in  1828  and  resigned  in  1844.  He  married, 
first,  August  13,  1812,  Sally,  daughter  of  Daniel  and 
Sarah  (Peabody)  Porter,  of  Topsfield,  and  second, 
Catherine,  daughter  of  Thomas  Kittredge,  of  Andover. 
He  died  in  Dorchester,  March  30,  1855. 

Charles  Henry  Warren,  son  of  Henry  and  Mary 
(Winslow)  Warren,  was  born  in  Plymouth,  September  29, 
1798,  and  graduated  at  Harvard  in  1817.  He  studied 
law  with  Joshua  Thomas  in  Plymouth,  and  Levi  Lin- 
coln in  Worcester,  and  was  admitted  to  the  Plymouth 
bar.  He  settled  in  New  Bedford,  first  as  a  law  partner 
with  Lemuel  Williams  and  afterwards  with  Thomas 
Dawes  Eliot,  and  from  1832  to  1839  was  District  At- 
torney for  the  five  southern  counties  of  Massachusetts. 
In  1839  he  was  appointed  Judge  of  the  Common  Pleas 
Court  and  resigning  in  1844  moved  to  Boston  and  as- 
sociated himself  with  Augustus  H.  Fiske  and  Benja- 
min Rand.  In  1846  he  was  chosen  President  of  the 
Boston  and  Providence  Railroad  and  resigned  in  1867. 
In  1851  he  was  President  of  the  Senate.  The  writer 
of  this  sketch  was  told  by  Judge  Warren  that  as  a 
Judge  he  took  no  notes,-  as  a  lawyer  never  had  a  brief, 
and  as  District  Attorney  never  lost  an  indictment  and 
only  in  two  instances  failed  to  convict.  He  married 
December  27,  1S25,  Abby,  daughter  of  Barnabas 
Hedge,  of  Plymouth,  and  died  in  Plymouth,  June  29, 
1874. 


OF  MASSACHUSETTS. 


247 


Charles  Allen,  son  of  Joseph,  was  born  in  Worcester, 
August  9,  1797.  He  entered  Yale  College  in  1811  and 
left  at  the  end  of  one  year,  and  shortly  after  entered 
the  law  office  of  Samuel  M.  Burnside  and  was  admitted 
to  the  bar  in  1818.  He  practiced  in  JSTew  Braintree  six 
years,  and  in  1829,  returning  to  Worcester,  became  a 
partner  with  John  Davis.  He  was  a  Kepresentative  in 
1829-1834-1836-1840,  and  Senator  in  1835-38-39  and  in 
1842  was  a  member  of  the  Northeastern  Boundary  Com- 
mission. In  1842  he  was  appointed  Judge  of  the  Com- 
mon Pleas  Court  and  resigned  in  1S44,  in  which  year 
he  became  a  member  of  Congress,  serving  until  1853. 
In  1858,  on  the  resignation  of  Chief  Justice  Nelson  of 
the  Superior  Court  of  Suffolk  County,  he  was  appointed 
his  successor.  The  Court  was  abolished  in  1859  by  the 
Act  establishing  the  Superior  Court  for  the  Common- 
wealth, and  he  was  appointed  in  that  year  Chief  Justice 
of  the  new  Court.  He  resigned  his  seat  in  1867,  and  died 
in  Worcester,  August  6,  1869. 

Pliny  Merrick  has  been  already  noticed  as  Judge  of 
the  Supreme  Judicial  Court. 

Daniel  Wells  was  born  in  Greenfield  in  1792,  and 
graduated  at  Dartmouth  in  1810.  In  1837,  he  was  ap- 
pointed District  Attorney,  and  in  1844,  Chief  Justice  of 
the  Court  of  Common  Pleas.  In  1849,  he  moved  to 
Cambridge  and  continued  on  the  bench  until  his  death, 
June  23,  1854. 

Joshua  Holyoke  Ward  was  born  in  Salem  in  1809, 
and  graduated  at  Harvard  in  1829.  He  studied  law 
with  Leverett  Saltonstall  in  Salem,  and  was  admitted  to 
the  Essex  bar  in  1832.  He  was  appointed  in  1844  Judge 
of  the  Common  Pleas  Court,  and  continued  on  the  bench 
until  his  death  in  Salem,  June  5,  1S48. 

Emory  Washburn,  son  of  Joseph,  was  born  in  Leices- 
ter, February  14,  1800,  and  graduated  at  Williams  in 


248 


JUDICIAL  HISTORY 


1817,  receiving  the  degree  of  LL.  D.  from  both  Wil- 
liams and  Harvard  in  1854.  He  studied  law  at  the  Har- 
vard Law  School,  and  was  admitted  to  the  Berkshire 
bar  at  Lenox  in  1821.  He  practiced  in  Leicester  until 
1828,  when  he  moved  to  Worcester  and  became  a  part- 
ner of  John  Davis.  He  was  a  Representative  in  1826- 
27  and  1838,  and  Senator  in  1841-42.  He  was  appointed 
in  1844  Judge  of  the  Court  of  Common  Pleas,  and  re- 
signed in  1847.  He  was  chosen  Governor  in  1853,  serv- 
ing one  year,  and  in  1856  was  appointed  Bussey  Prof essor 
of  Law  at  the  Harvard  Law  School,  which  position  lie 
held  until  1876.  He  was  author  of  "  Judicial  History 
of  Massachusetts,"  "  History  of  Leicester,"  a  "  Treatise 
on  the  American  Law  of  Heal  Property  "  and  a  "  Treatise 
on  the  American  Law  of  Easements  and  Servitudes." 
He  died  while  serving  as  a  Representative  from  Cam- 
bridge, March  18,  1877. 

Luther  Stearns  Cushing  was  born  in  Lunenburg,  Mass., 
June  22,  1803,  and  graduated  at  the  Harvard  Law 
School  in  1826.  He  was  admitted  to  the  Middlesex  bar 
in  March,  1827,  and  was  several  years  editor  of  "The 
Jurist  and  Law  Magazine."  From  1832  to  1843,  he 
was  Clerk  of  the  House  of  Representatives  and  Repre- 
sentative in  1844.  He  was  appointed  in  1844,  Judge  of 
the  Court  of  Common  Pleas,  and  resigning  in  1848  was 
appointed  reporter  of  the  decisions  of  the  Supreme  Ju- 
dicial Court  serving  until  1853,  and  editing  twelve  vol- 
umes, beginning  with  the  Suffolk  and  Nantucket  term 
of  1848  and  ending  with  the  Suffolk  term  of  November, 
1853.  He  is  widely  known  as  the  author  of  "  A  Manual 
of  Parliamentary  Practice,"  the  "  Elements  of  the  Law 
and  Practice  of  Legislative  Assemblies"  and  "  Rules  of 
Proceeding  and  Debates  in  Deliberate  Assemblies."  He 
died  in  Boston,  June  22,  1856. 

Harrison  Gray  Otis  Colby,  son  of  Rev.  Philip  and 


OF  MASSACHUSETTS. 


249 


Harriet  (Sewall)  Colby,  -was  born  in  Hallowell,  Maine, 
in  1807,  and  graduated  at  Brown  in  1827.  He  was  ad- 
mitted to  the  Bristol  County  bar  and  settled  in  Taun- 
ton, removing  later  to  New  Bedford  where  he  married 
a  daughter  of  John  Avery  Parker.  In  1845  he  was  ap- 
pointed Judge  of  the  Court  of  Common  Pleas  and  re- 
signed in  1S47.    He  died  February  22,  1853. 

Charles  Edward  Forbes  has  been  noticed  as  Judge  of 
the  Supreme  Judicial  Court. 

Edward  Mellen  was  born  in  Westboro,  Mass.,  in  1802, 
and  graduated  at  Brown  in  1823.  He  was  admitted  to 
the  bar  in  1S28,  and  settled  in  Wayland.  In  1847  he 
was  appointed  Judge  of  the  Court  of  Common  Pleas, 
and  in  1854  Chief  Justice.  He  remained  on  the  bench 
until  his  court  was  abolished  in  1859  when  he  settled  in 
Worcester,  and  died  in  Wayland,  May  31,  1875. 

George  Tyler  Bigelow  has  been  noticed  as  Chief  Jus- 
tice of  the  Supreme  Judicial  Court. 

Jonathan  Cogswell  Perkins  was  born  in  Ipswich, 
Mass.,  November  21,  1809,  and  graduated  at  Amherst 
in  1832.  He  studied  law  at  the  Harvard  Law  School, 
and  was  admitted  to  the  Essex  bar  in  1835.  He  was 
Senator  in  1847,  and  in  1848  was  appointed  Judge  of 
the  Court  of  Common  Pleas,  remaining  on  the  bench 
until  the  dissolution  of  that  court  in  1859.  He  edited 
several  volumes  of  Pickering's  Reports,  with  notes, 
Chitty's  Criminal  Law,  Chitty  on  Contracts,  Jarman 
on  Wills,  Abbot  on  Shipping,  Daniel's  Chancery  Prac- 
tice, Collyer  on  Partnership,  and  was  the  author  of  a 
treatise  on  Arbitrations  and  Awards.  He  died  in 
Salem,  December  12,  1877. 

Horatio  Byington,  son  of  Isaiah,  was  born  in  Stock- 
bridge,  Mass.,  and  studied  law  in  Stockbridge  and  with 
Judge  Howe  in  Worthington.  He  was  admitted  to  the 
Berkshire  bar  in  1S20,  and  beginning  practice  in  Plain- 


250 


JUDICIAL  HISTORY 


field,  returned  to  Stockbridge  and  practiced  there  until 
he  was  appointed,  in  1848,  Judge  of  the  Court  of  Com- 
mon Pleas.  Pie  remained  on  the  bench  until  his  death, 
at  Stockbridge,  February  5,  1856. 

Thomas  Hopkinson  was  born  in  New  Sharon,  Maine, 
August  25,  1804,  and  graduated  at  Harvard  in  1830. 
He  studied  law  with  Lawrence  &  Glidden  in  Lowell, 
and  was  admitted  to  the  Middlesex  bar  in  1833.  He 
settled  in  Lowell,  was  Representative  in  1838  and  1847, 
and  Senator  in  1845,  and  in  1848  was  appointed  Judge 
of  the  Court  of  Common  Pleas.  In  1849  he  resigned, 
and  was  made  President  of  the  Boston  and  Worcester 
Railroad  Company.  He  died  in  Cambridge,  Novem- 
ber 17,  1856. 

Ebenezer  Rockwood  Hoar  has  been  noticed  as  Judge 
of  the  Supreme  Judicial  Court. 

Henry  Walker  Bishop  was  Register  of  Probate  of 
Berkshire  County  from  1826  to  1851.  and  in  the  latter 
year  was  appointed  Judge  of  the  Court  of  Common 
Pleas.    He  died  in  Lenox,  April  13,  1871. 

George  Nixon  Briggs,  son  of  Allen  and  Mary  (Brown) 
Briggs,  was  born  in  Adams,  Mass.,  April  12,  1796. 
After  learning  the  hatter's  trade,  he  studied  law  in 
Adams  and  was  admitted  to  the  Berkshire  bar  in  Oc- 
tober, 1818.  He  practiced  in  Adams,  Lanesboro  and 
Pittsfield,  was  Register  of  Deeds  from  1824  to  1831,. 
member  of  Congress  from  1831  to  1843,  Governor  of 
Massachusetts  from  1S44  to  1850,  and  Judge  of  the 
Court  of  Common  .Pleas  from  1853  until  the  dissolution 
of  the  court  in  1859.  He  received  the  degree  of  LL.  D. 
from  Harvard  in  1844,  from  Williams  in  1844,  and  Am- 
herst in  1845.    He  died  September  12,  1861. 

George  Partridge  Sanger,  son  of  Rev.  Ralph  and 
Charlotte  (Kingman)  Sanger,  was  born  in  Dover,  Mass., 
November  27,  1819,  and  graduated  at  Harvard  in  1840. 


OF  MASSACHUSETTS. 


251 


He  studied  law  at  the  Harvard  Law  School  and  while 
in  the  school  was  a  tutor  in  Latin  at  Harvard.  He  was 
admitted  to  the  Suffolk  bar  February  9, 1846,  and  after 
practicing  as  a  partner  first  with  Stephen  H.  Phillips 
and  afterwards  with  Charles  G.  Davis,  was  appointed 
Assistant  United  States  District  Attorney  in  1849.  In 
January,  1853,  he  was  appointed  to  the  staff  of  Gover- 
nor John  H.  Clifford,  and  on  the  30th  of  September 
in  that  year  was  appointed  Commonwealth  or  Dis- 
trict Attorney.  In  1851  he  was  appointed  Judge  of  the 
Court  of  Common  Pleas,  and  remained  on  the  bench 
until  the  dissolution  of  the  Court  in  1859.  In  1861  he 
was  reappointed  District  Attorney,  serving  until  his. 
resignation  in  1866.  In  1873  he  was  appointed  United 
States  Attorney  by  President  Grant  and  reappointed  by 
Presidents  Hayes  and  Arthur.  He  was  a  Representa- 
tive in  1873  and  was  editor  of  the  American  Almanac 
from  181S  to  1860.  He  married,  September  14,  1S46, 
Elizabeth  Sherburne,  daughter  of  William  Whipple  and 
Eleanor  (Sherburne)  Thompson,  of  Portsmouth,  IS".  H.> 
and  died  at  Swampscott,  July  3,  1S90. 

Henry  Morris,  son  of  Oliver  Bliss  Morris,  was  born 
in  Springfield,  Mass.,  in  1814,  and  graduated  at  Am- 
herst in  1832.  He  was  admitted  to  the  bar  in  1835 
and  settled  in  Springfield.  In  1855  he  was  appointed 
Judge  of  the  Court  of  Common  Pleas  and  served  until 
the  dissolution  of  the  Court  in  1859.  He  married  Mary 
Warmer,  May  16, 1837,  and  died  in  Springfield,  June  4, 
1888. 

David  Aiken,  son  of  Phinehas  and  Elizabeth  (Patter- 
son) Aiken,  was  born  in  Bedford,  ]ST.  H.,  June  7,  1804, 
and  graduated  at  Dartmouth  in  1830.  He  studied  law 
in  the  offices  of  Bennett  and  Aiken  in  Manchester,  Vt., 
and  Wells  &  Alvord  in  Greenfield,  Mass.,  and  was  ad- 
mitted to  the  Franklin  bar  in  August,  1833.  Begin- 


252 


JUDICIAL  HISTORY 


ning  practice  in  Ashfield,  he  removed  to  Greenfield, 
where  at  various  times  he  was  associated  with  Henry 
Chapman,  George  Grinnell,  George  T.  Davis,  Charles 
Allen,  Chester  C.  Conant,  W.  S.  B.  Hopkins  and  Charles 
E.  Forbes.  In  1856  he  was  appointed  Judge  of  the 
Court  of  Common  Pleas  and  served  until  the  dissolu- 
tion of  that  Court  in  1859.  In  1847  he  was  Senator. 
He  married  first  at  Greenfield,  October  24, 1844,  Lydia 
W.,  daughter  of  Spencer  Eoot,  and  second  in  Novem- 
ber, 184S,  Mary  Elizabeth,  daughter  of  John  S.  Adams 
of  Amherst.    He  died  in  Greenfield,  April  13,  1895. 

On  the  5th  of  April,  1859,  an  Act  was  passed  abolishing 
the  Court  of  Common  Pleas  and  establishing  the  Superior 
Court.  The  writer  was  at  the  time  of  the  passage  of 
the  Act  a  member  of  the  Senate  and  can  say  that  Gen- 
eral Benjamin  F.  Butler,  a  member  if  not  Chairman  of 
the  Senate  Judiciary  Committee,  was  the  father  of  the 
Act  and  engineered  it  through  the  Legislature.  Pre- 
cisely what  motives  actuated  those  most  active  in  the 
establishment  of  the  new  court  cannot  be  accurately 
estimated.  It  is,  however,  well  known  that  there  were 
some  members  of  the  legal  profession  who  thought 
that  the  equipment  of  the  old  bench  might  be  improved 
and  that  while  a  wholesale  removal  by  address  would 
be  impracticable,  the  same  result  could  be  accomplished 
by  a  dissolution  of  the  court.  But  it  would  be  gross 
injustice  to  the  incumbents  of  the  Common  Pleas  bench 
to  state  or  believe  that  the  new  court  owed  its  origin 
to  the  weakness  of  the  old.  All  of  them  were  men  of 
the  highest  character  and  had  been  recognized  by  the 
Governors  appointing  them  as  possessing  marked  legal 
attainments.  One  had  been  Governor  of  the  Common- 
wealth and  of  the  other  six,  five  were  graduates  of 
either  Amherst,  Brown,  Dartmouth  or  Harvard,  and  had 
established  themselves  successfully  in  practice.  During 


OF  MASSACHUSETTS. 


253 


its  career  of  forty-eight  years  the  Common  Pleas  Court 
had  been  maintained  at  a  high  standard  and  with  "Ward, 
Williams,  Warren,  Allen,  Merrick,  Washburn,  Bigelow 
and  Hoar  on  its  bench  had  fully  met  the  demands  of 
the  community  and  the  profession. 

The  Act  establishing  the  Superior  Court  provided 
that  all  cases  pending  in  the  Superior  Court  of  the 
county  of  Suffolk,  the  Court  of  Common  Pleas  and  the 
Municipal  Court  of  the  city  of  Boston,  all  of  which 
courts  were  abolished,  and  all  actions  at  law  and  appeals 
in  cases  of  insolvency  now  pending  in  the  Supreme 
Judicial  Court,  wherein  the  debt  or  damage  sought  to 
be  recovered  on  property  claimed,  if  in  the  county  of 
Suffolk  does  not  exceed  $4,000,  or  if  in  any  other 
county  $1,000,  and  all  capital  cases  shall  be  transferred 
to  and  have  day  in  the  proper  term  of  the  Superior 
Court  in  the  respective  counties. 

Appellate  jurisdiction  was  given  to  the  Court  in  all 
matters  of  insolvency  determinable  by  the  Courts  of 
Probate  and  of  insolvency,  and  in  all  other  cases  the 
same  appellate  jurisdiction  as  the  Supreme  Judicial 
Court,  the  Court  of  Common  Pleas,  the  Superior  Court 
of  the  county  of  Suffolk  and  the  Municipal  Court 
of  the  city  of  Boston  had  except  where  otherwise  pro- 
vided. It  provided  for  the  appointment  of  a  Chief 
Justice  and  nine  Associate  Justices,  for  the  times  of 
holding  the  courts  in  the  various  counties  and  for  the 
salaries  of  the  Judges.  It  further  provided  that  per- 
sons indicted  for  offences  punishable  by  death  or  im- 
prisonment for  life  shall  be  tried  in  the  Superior  Court 
by  three  Justices,  and  that  no  Justice  shall  hold  in  any 
one  year  more  than  three  terms  for  the  transaction  of 
criminal  business.  It  further  provided  for  concurrent 
jurisdiction  with  the  Supreme  Judicial  Court  in  all  civil 
actions  in  which  the  damages  demanded  exceed  in 


254 


JUDICIAL  HISTORY 


amount  $4,000  in  the  county  of  Suffolk  or  $1,000  in  the 
other  counties. 

The  Act  of  which  the  above  is  a  synopsis  was  re- 
pealed by  the  General  Statutes  of  1860  and  reenacted 
with  the  absolute  repeal  of  some  provisions  and  a 
modification  of  others.  Among  the  provisions  abso- 
lutely repealed  was  that  which  gave  to  the  Superior 
Court  jurisdiction  in  capital  cases.  That  jurisdiction 
continued  therefore  with  the  Supreme  Judicial  and  re- 
mained unchanged  until  1891,  when  by  Chapter  379  of 
the  laws  of  that  year,  it  was  again  given  to  the  Su- 
perior Court.  Among  other  transfers  of  jurisdiction 
from  the  Supreme  Judicial  Court  to  the  Superior 
Court  has  been  that  in  matters  of  divorce  in  1887,  and 
concurrent  jurisdiction  was  given  to  it  in  1891  in  mat- 
ters relating  to  telegraph  and  telephone  wires,  relating 
to  the  abuse  by  towns  of  corporate  powers  and  relating 
to  the  contraction,  alteration,  maintenance  and  use  of 
buildings  and  to  the  control  of  street  railways. 

The  original  Act  provided  for  the  appointment  of 
one  Chief  Justice  and  nine  Associate  Justices.  In  1875 
the  number  of  Associates  was  increased  to  ten,  in  1886 
to  eleven,  in  1888  to  thirteen,  in  1892  to  fifteen  and  in 
1896  to  seventeen. 

The  following  Judges  have  been  appointed  to  its 
bench  since  its  organization  in  1859  : 

Charles  Allen,  Chief  Justice,  appointed  1859 ;  Julius 
Eockwell,  Otis  Phillips  Lord,  Marcus  Morton  and 
Ezra  Wilkinson,  Associates,  who  were  all  appointed 
1859 ;  Seth  Ames,  Associate,  appointed  1859,  Chief 
Justice,  1867 ;  Henry  Vose,  Associate,  appointed  1859 ; 
Thomas  Russell,  Associate,  appointed  1859  ;  John 
Phelps  Putnam,  Associate,  appointed  1859 ;  Lincoln 
Flagg  Brigham,  Associate,  1859,  Chief  Justice,  1869 ; 
Chester  Isham  Reed,  Associate,  appointed  1867 ;  Charles 


OF  MASSACHUSETTS. 


255 


Devens,  Associate,  appointed  1867;  Henry  Austin  Scud- 
der,  Associate,  appointed  1869;  Francis  Henshaw  Dewey, 
Associate,  appointed  1869  ;  Eobert  Carter  Pitman,  As- 
sociate, appointed  1869  ;  John  William  Bacon,  Associate, 
appointed  IS 71 ;  William  Allen,  Associate,  appointed 
1872 ;  Peleg  Emory  Aldrich,  Associate,  appointed 
1873  ;  Waldo  Colburn,  Associate,  appointed  1875  ;  Wil- 
liam Sewall  Gardner,  Associate,  appointed  1875  ;  Ham- 
ilton Barclay  Staples,  Associate,  appointed  1881 ;  Mar- 
ens  Perrin  Knowlton,  Associate,  appointed  18S1 ;  Caleb 
Blodgett,  Associate,  appointed  1S82;  Albert  Mason, 
Associate,  appointed  18S2,  Chief  Justice,  1890 ;  James 
Madison  Barker,  Associate,  appointed  18S2 ;  Charles 
Perkins  Thompson,  Associate,  appointed  1885 ;  John 
Wilkes  Hammond,  Associate,  appointed  1886 ;  Justin 
Dewey,  Associate,  appointed  1886 ;  Edgar  Jay  Sher- 
man, Associate,  appointed  18S7  ;  John  Lathrop,  Associ- 
ate, appointed  1888  ;  James  Eobert  Dimbar,  Associate, 
appointed  18S8 ;  Eobert  Roberts  Bishop,  Associate,  ap- 
pointed 1888 ;  Daniel  Webster  Bond,  Associate,  ap- 
pointed 1890  ;  Henry  King  Braley,  Associate,  appointed 
1891 ;  John  Hopkins,  Associate,  appointed  1891 ;  Elisha 
Burr  Maynard,  Associate,  appointed  1891 ;  Franklin 
Goodridge  Fessenden,  Associate,  appointed  1891 ;  John 
William  Corcoran,  Associate,  appointed  1892 ;  James 
Bailey  Richardson,  Associate,  appointed  1892  ;  Charles 
Sumner  Lilley,  Associate,  appointed  1893  ;  Henry  New- 
ton Sheldon,  Associate,  appointed  1894;  Francis  Almon 
Gaskell,  Associate,  appointed  1S95 ;  John  Henry 
Hardy,  Associate,  appointed  1S96  ;  Henry  Ward  well, 
Associate,  appointed  1896  ;  William  Burnham  Stevens, 
Associate,  appointed  1898 ;  Charles  Upham  Bell,  As- 
sociate, appointed  1S98  ;  John  Adams  Aiken,  Associate, 
appointed  1898 ;  Frederick  Lawton,  Associate,  appointed 
1900. 


256 


JUDICIAL  HISTORY 


Charles  Allen,  the  first  Chief  Justice  of  the  Superior 
Court,  has  been  noticed  as  a  Judge  of  the  Court  of  Com- 
mon Pleas. 

Seth  Ames  has  been  noticed  as  Judge  of  the  Su- 
preme Judicial  Court. 

Julius  Rockwell  was  born  in  Colebrook,  Conn., 
April  26,  1805,  and  graduated  at  Yale  in  1826.  He 
studied  law  at  the  Yale  Law  School  and  with  Swan  & 
Sedgwick  in  Sharon,  Conn.,  and  was  admitted  to  the 
bar  in  Litchfield,  Conn.,  in  1829.  He  established  him- 
self in  Pittsfield,  Mass.,  in  1830,  practicing  alone  until 
1834,  when  he  associated  himself  with  James  Denison 
Colt.  He  was  a  Representative  from  1834  to  1837,  and 
the  last  three  years  was  Speaker  of  the  House  of  Rep- 
resentatives. He  was  State  Bank  Commissioner  from 
1839  to  1841,  and  from  1844  to  1852  member  of  Con- 
gress. In  1854  he  was  appointed  United  States  Senator 
for  the  unexpired  term  of  Edward  Everett,  who  had  re- 
signed, and  in  1S55  was  the  Republican  candidate  for 
Governor  against  Henry  J.  Gardner,  the  Know-Nothing 
candidate,  and  was  defeated.  In  1858  he  was  again 
Representative  and  Speaker,  and  in  1859  was  appointed 
Judge  of  the  Superior  Court,  holding  office  until  his 
resignation  in  1886.  In  1865  he  removed  from  Pitts- 
field  to  Lenox,  where  he  died  May  18,  1888. 

Otis  Phillips  Lord  has  been  noticed  as  a  Judge  of  the 
Supreme  Judicial  Court. 

Marcus  Morton,  Jr.,  has  been  noticed  as  Chief  Jus- 
tice of  the  Supreme  Judicial  Court. 

Ezra  "Wilkinson  was  born  in  Attleboro,  Mass.,  Feb- 
ruary 14,  1805,  and  graduated  at  Brown  in  1824.  He 
studied  law  with  Peter  Pratt  in  Providence  and  Josiah 
J.  Fiske  in  Wrentkam,  Mass.,  and  was  admitted  to  the 
bar  in  Dedham  in  September,  1828.  He  practiced  a 
short  time  in  Freetown  and  Seekonk  and  removed  to 


OF  MASSACHUSETTS. 


257 


Declham  in  1835.  He  was  District  Attorney  from  1843 
to  1855,  Representative  1841-51-56,  and  a  member  of 
the  Constitutional  Convention  in  1853.  He  was  ap- 
pointed in  1859  Judge  of  the  Superior  Court  and  con- 
tinued on  the  bench  until  his  death  in  Dedham,  Feb- 
ruary 6,  1882. 

Henry  Yose,  son  of  Elijah  and  Rebecca  Gorham  (Bart- 
lett)  Yose,  was  born  in  Charlestown,  Mass.,  May  21, 
1817,  and  graduated  at  Harvard  in  1837.  He  studied 
law  with  George  T.  Davis  in  Greenfield,  and  with 
Chapman  &  Ashmun  in  Springfield  and  was  admitted 
to  the  bar  in  Springfield.  He  was  a  Representative 
from  Springfield  in  1858  and  in  1859  was  appointed 
Judge  of  the  Superior  Court.  He  married  October  19, 
1842,  Martha  B.  Riple}",  of  Concord,  Mass.,  and  died 
in  Boston  January  17,  1869,  having  sat  on  the  bench 
until  his  death. 

Thomas  Russell,  son  of  Thomas  and  May  Ann  (Good- 
win) Russell,  was  born  in  Plymouth,  Mass.,  September  26, 
1825,  and  graduated  at  Harvard  in  1845.  He  studied 
law  with  Whiting  &  Russell  in  Boston  and  was  admit- 
ted to  the  Suffolk  bar  November  12,  1849.  He  was 
appointed  Justice  of  the  Police  Court  of  Boston  Febru- 
ary 26,  1852,  and  in  1859  an  Associate  Justice  of  the 
Superior  Court.  He  resigned  in  1867  and  was  made 
Collector  of  the  Port  of  Boston  by  President  Grant, 
serving  until  after  the  re-election  of  President  Grant, 
when  he  resigned  and  was  appointed  Minister  to  Yene- 
zuela.  He  married  Nellie,  daughter  of  Rev.  Edward 
T.  Taylor,  of  Boston,  and  died  in  that  city  February  9, 
1887. 

John  Phelps  Putnam  was  born  in  Hartford,  Conn., 
March  21,  1817,  and  graduated  at  Yale  in  1837.  He 
graduated  at  the  Harvard  Law  School  in  1839  and  was 
admitted  to  the  Suffolk  bar  October  12,  1840.    He  set- 
17 


258 


JUDICIAL  HISTORY 


tied  in  Boston,  being  a  Representative  in  1851-2,  and 
in  1859  was  appointed  Judge  of  the  Superior  Court. 
He  remained  on  the  bench  until  his  death  in  Boston, 
January  4,  1882. 

Lincoln  Flagg  Brigham,  son  of  Lincoln  and  Lucy 
(Forbes)  Brigham,  was  born  in  Cambridge,  October  4, 
1819,  and  graduated  at  Dartmouth  in  1842.  Lie  studied 
law  at  the  Harvard  Law  School  and  with  John  H. 
Clifford  and  Harrison  G.  O.  Colby  in  New  Bedford  and 
was  admitted  to  the  Bristol  bar  in  1845.  He  was  for 
a  time  a  partner  of  Mr.  Clifford  and  was  District  At- 
torney six  years.  In  1859  he  was  appointed  Associate 
Justice  of  the  Superior  Court  and  in  1869  Chief  Justice, 
serving  until  he  resigned  in  1S90.  He  married  at  New 
Bedford,  October  20,  1847,  Eliza  Endicott,  daughter  of 
Thomas  and  Sylvia  (Perry)  Swain,  and  died  in  Salem 
February  27,  1895. 

Chester  Isham  Reed,  son  of  William  and  Elizabeth 
Dean  (Dennis)  Reed,  was  born  in  Taunton,  Mass., 
November  23,  1823,  and  received  an  honorary  degree 
from  Brown  University  in  which  he  was  for  a  time  a 
student.  He  studied  law  with  Anselm  Bassett  and  in 
1863  was  chosen  Attorney  General,  before  which  he 
was  in  1859  a  member  of  the  Senate.  He  married, 
February  24,  1851,  Elizabeth  Y.  Allyn,  of  New  Bed- 
ford. He  was  appointed,  in  1867,  Judge  of  the  Superior 
Court,  resigning  his  seat  in  1871.  He  died  at  White 
Sulphur  Springs,  W.  Ya.,  September  2,  1873. 

Charles  Devens,  Jr.,  has  already  been  noticed  as 
Judge  of  the  Supreme  Judicial  Court. 

Henry  Austin  Scudder,  son  of  Josiah  and  Hannah 
(Lovell)  Scudder,  was  born  in  Barnstable,  Novem- 
ber 25,  1819.  He  studied  law  with  his  brother,  Zeno,  at 
Barnstable,  and  in  Boston  with  George  T.  Bigelow,  and 
was  admitted  to  the  Suffolk  bar,  October  25,  1844.  He 


OF  MASSACHUSETTS. 


259 


was  appointed  in  February,  1S69,  Judge  of  the  Superior 
Court  and  resigned  in  1872.  He  married,  June  30, 
1857,  Mrs.  Xannie  B.  Jackson,  daughter  of  Capt. 
Charles  B.  Tobey,  of  Xantucket,  and  died  at  "Washing- 
ton, January  26,  1892. 

Francis  Henshaw  Dewey,  was  born  in  Williamstown, 
Mass.,  in  1821,  and  graduated  at  Williams  in  1840.  He 
practiced  in  Worcester  until  he  was  appointed  in  1869 
Judge  of  the  Superior  Court.  He  resigned  in  1881 
and  died  in  Worcester,  December  16,  1S87. 

Bobert  Carter  Pitman,  son  of  Benjamin  and  Mary 
Ann  (Carter)  Pitman,  was  born  in  [Newport,  11.  I., 
March  16,  1825,  and  graduated  at  the  Wesleyan  Uni- 
versity, Middletown,  Conn.,  in  1S15,  receiving  the  de- 
gree of  LL.  D.  in  1869.  He  was  admitted  to  the  bar  in 
New  Bedford  in  18-18  where  he  practiced  until  1869  when 
he  was  appointed  Judge  of  the  Superior  Court.  He  was 
associated  at  different  times  as  a  partner  with  Thomas 
D.  Eliot  and  Alanson  Borden.  He  was  a  Bepresenta- 
tive  in  1S58,  Senator  in  1861^5,  1868-9  and  the  last  }Tear 
was  President  of  the  Senate.  He  married  in  Xew 
Bedford,  August  15,  1855,  Frances  B.,  daughter  of  Bev. 
M.  G.  Thomas,  and  died  in  Isewton,  March  5,  1S91, 
having  continued  on  the  bench  until  his  death. 

John  William  Bacon,  was  born  in  Xatick,  Mass.,  in 
1818  and  graduated  at  Harvard  in  1813.  He  was  ad- 
mitted to  the  Middlesex  bar  in  1816  and  practiced  law 
in  JSTatick  fourteen  years.  He  was  a  member  of  the 
Senate  from  1859  to  1S62  and  July  2,  1806,  he  was 
appointed  Chief  Justice  of  the  Municipal  Court  of  the 
city  of  Boston.  In  1871  he  was  appointed  Judge  of 
the  Superior  Court  and  died  while  holding  Court  at 
Taunton,  March  21,  1888. 

William  Allen  has  been  noticed  as  Judge  of  the  Su- 
preme Judicial  Court. 


260 


JUDICIAL  HISTORY 


Peleg  Emory  Aldrich  was  born  in  New  Salem,  July  24, 
1813,  and  studied  law  at  the  Law  School  at  Harvard. 
He  was  admitted  to  the  bar  in  Richmond,  Ya.,  in  1845, 
and  in  1846  at  Worcester,  after  further  pursuing  his 
studies  in  the  office  of  Chapman,  Ashmum  &  Norton  in 
Springfield.  He  first  settled  in  Barre  and  in  1853  he 
was  appointed  District  Attorney  for  the  Middle  Dis- 
trict, serving  until  1866.  In  1854,  he  moved  to  Worces- 
ter and  became  associated  with  P.  C.  Bacon.  In  1862, 
he  was  chosen  Mayor  of  Worcester  and  was  Represen- 
tative in  1865-66.  In  1873,  he  was  appointed  Judge  of 
the  Superior  Court.  He  married  Sarah,  daughter  of 
Harding  P.  Wood,  of  Barre,  in  1850,  and  died  in 
Worcester,  March  14,  1895. 

Waldo  Colburn  has  been  noticed  as  Judge  of  the  Su- 
preme Judicial  Court. 

William  Sewall  Gardner  has  been  noticed  as  Judge 
of  the  Supreme  Judicial  Court. 

Hamilton  Barclay  Staples,  son  of  Welcome  and 
Susan  Staples,  was  born  in  Mendon,  Mass., February  14, 
1829  and  graduated  at  Brown  in  1851.  He  studied 
law  in  Providence  and  Worcester  and  was  admitted  to 
the  Worcester  bar  in  1854.  He  practiced  in  Milford 
until  1869  and  then  moved  to  Worcester  where  he  was 
associated  with  Francis  P.  Goulding  until  1881,  when 
he  was  appointed  to  the  bench  of  the  Superior  Court. 
For  eight  years  he  was  District  Attorney  of  the  Middle 
District  and  in  1884  he  received  the  degree  of  LL.  D. 
from  Brown.  He  married  Elizabeth  A.  Godfrey  in 
Mendon,  in  1858,  and  October  8, 1868,  at  Northampton, 
Mary  Clinton,  daughter  of  Charles  A.  Dewey,  and  died 
while  on  the  bench  in  Milford,  August  2,  1891. 

Marcus  Perrin  Knowlton  has  been  noticed  as  Judge 
of  the  Supreme  Judicial  Court. 

Caleb  Blodgett,  son  of  Caleb  and  Charlotte  (Piper) 


OF  MASSACHUSETTS. 


261 


Blodgett,  was  bom  in  Dorchester,  N.  H.,  June  3,  1832, 
and  graduated  at  Dartmouth  in  1856.  He  studied  law 
with  Bacon  &  Aldrich  in  Worcester,  and  was  admitted 
to  the  Worcester  bar  in  February,  1S60.  He  began 
practice  in  Hopkinton,  but  removed  to  Boston,  where 
he  was  associated  with  Halsey  -J.  Boardman  until  1882, 
when  he  was  appointed  to  the  Superior  Court  bench, 
where  he  is  still  serving.  He  married,  December  14, 
1865,  at  Canaan,  1ST.  H.,  Roxie  B.,  daughter  of  Jesse  and 
Emily  A.  (Green)  Martin. 

Albert  Mason,  son  of  Albert  T.  and  Arlina  (Orcutt) 
Mason,  was  born  in  Middleboro,  Mass.,  November  7, 
1836,  and  after  studying  law  in  Plymouth  was  admitted 
to  the  Plymouth  bar  February  15, 1860.  He  enlisted  as 
a  private  in  one  of  two  companies  raised  by  William  T. 
Davis  for  the  38th  Regiment,  and  on  the  recommenda- 
tion of  Mr.  Davis  was  commissioned  Second  Lieutenant 
of  Company  F  in  that  regiment.  He  served  until  1865 
as  Second  Lieutenant,  First  Lieutenant,  Captain  and 
Assistant  Quartermaster,  and  then  resumed  practice  in 
Plymouth.  At  a  later  date  he  moved  to  Boston  and 
in  1871  was  appointed  a  member  of  the  Board  of  Har- 
bor Commissioners,  and  in  1882  a  Judge  of  the  Superior 
Court,  of  which  he  was  made  Chief  Justice  in  1890, 
which  position  he  still  holds.  He  married,  Novem- 
ber 25, 1857,  Lydia  F.,  daughter  of  Nathan  and  Experi- 
ence (Finney)  Whiting,  of  Plymouth. 

James  Madison  Barker  has  been  noticed  as  Judge  of 
the  Supreme  Judicial  Court. 

Charles  Perkins  Thompson,  son  of  Frederick  M.  and 
Susannah  (Cheeseman)  Thompson,  was  born  in  Brain- 
tree,  Mass.,  July  30,  1827,  and  after  studying  law  in 
the  office  of  Benjamin  F.  Hallett  in  Boston,  was  ad- 
mitted to  the  Suffolk  bar  in  1854.  In  1S57  he  moved 
to  Gloucester,  from  which  place  he  was  a  Representa- 


262 


JUDICIAL  HISTORY 


tive  in  1871-2.  From  1874  to  1876  he  was  a  member 
of  Congress,  in  1877  received  an  honorary  degree  of 
Master  of  Arts  from  Amherst,  and  in  1880  and  1881 
was  the  Democratic  candidate  for  Governor  of  Massa- 
chusetts. He  married,  in  1861,  Abbie  Herrick  of 
Gloucester.  In  1885  he  was  appointed  Judge  of  the 
Superior  Court,  and  died  while  on  the  bench,  in  Glou- 
cester, January  19,  1894. 

John  Wilkes  Hammond  has  been  noticed  as  Judge 
of  the  Supreme  Judicial  Court. 

Justin  Dewey,  son  of  Justin  and  Melinda  (Kelsey) 
Dewey,  was  born  in  Alford,  Mass.,  June  12,  1836,  and 
graduated  at  Williams  in  1858.  He  studied  law  in  the 
office  of  Increase  Sumner  of  Great  Barrington  and  was 
admitted  to  the  Berkshire  bar  in  November,  1S60.  He 
was  a  Representative  in  1862  and  1877,  and  a  Senator 
in  1879.  In  1886  he  was  appointed  Judge  of  the 
Superior  Court  and  is  now  on  the  bench.  He  married, 
February  8,  1865,  Jane,  daughter  of  George  and  Clara 
(Wadhams)  Stanley,  of  Great  Barrington. 

Edgar  Jay  Sherman,  son  of  David  and  Fanny  (Ken- 
dall) Sherman,  was  born  in  Weathersfield,  Vt.,  Novem- 
ber 28, 1834,  and  was  admitted  to  the  Essex  bar  in  1858. 
He  settled  in  Lawrence,  and  was  at  different  times  asso- 
ciated with  Daniel  Saunders  and  with  John  K.  Tarbox 
and  Charles  U.  Bell.  He  was  appointed  Clerk  of  the 
Lawrence  Police  Court  in  1859,  and  in  1862  entered  the 
service  as  Captain  in  the  48th  Massachusetts  Regiment 
and  was  bre vetted  Major  after  the  attack  on  Port  Hud- 
son, June  14,  1863.  He  was  Representative  in  1865, 
and  in  1868  was  chosen  District  Attorney  for  the  East- 
ern District.  In  1882  he  was  chosen  Attorney  Gen- 
eral and  served  until  1887,  when  he  was  appointed 
Judge  of  the  Superior  Court,  which  position  he  still 
holds.    He  married  Abbie  Louise,  daughter  of  Stephen 


OF  MASSACHUSETTS. 


263 


P.  and  Fanny  B.  Simmons,  of  Lawrence,  November  24, 
1858. 

John  Lathrop  has  been  noticed  as  Judge  of  the  Su- 
preme Judicial  Court. 

James  Robert  Dunbar,  son  of  Henry  W.  and  Elizabeth 
(Richards)  Dunbar,  was  born  in  Pittsfield,  Mass.,  Decem- 
ber 23,  1817,  and  graduated  at  Williams  in  1871.  He 
studied  law  at  Harvard  and  in  the  office  of  Milton  B. 
Whitney  in  Westfield,  with  whom  he  formed  a  partner- 
ship in  1874.  He  was  in  the  Senate  in  1885-86  and  in 
1888  he  was  appointed  Judge  of  the  Superior  Court. 
He  resigned  his  seat  in  1898,  and  is  now  in  practice  in 
Boston.  He  married.  May  15,  1875,  at  Westfield,  Har- 
riet P.,  daughter  of  George  A.  and  Electa  N.  (Lincoln) 
Walton. 

Robert  Roberts  Bishop,  son  of  Jonathan  Parker  and 
Eliza  Harding  Bishop,  was  born  in  Med  field,  Mass., 
March  31,  1834,  and  studied  law  at  the  Harvard  Law 
School  and  in  Boston,  in  the  offices  of  Peleg  W.  Chand- 
ler and  Brooks  &  Ball.  He  was  admitted  to  the  Suf- 
folk bar  November  24, 1857,  and  was  a  Representative  in 
1874,  and  a  Senator  from  1878  to  1882,  the  last  three 
years  of  which  he  was  President.  He  was  the  Repub- 
lican candidate  for  Governor  in  1882,  and  was  ap- 
pointed, March  7,  18S8,  Judge  of  the  Superior  Court, 
which  place  he  still  holds.  He  married,  December  24, 
1857,  at  Holliston,  Mass.,  Mary  Helen  Bullard. 

Daniel  Webster  Bond,  son  of  Daniel  Herrick  and 
Deborah  (White)  Bond,  was  born  in  Canterbury,  Conn., 
April  29,  1838,  and  was  educated  at  the  Plainfield  Acad- 
emy in  Plainfield,  Conn.,  and  at  the  State  Normal 
School  in  New  Britain,  Conn.  He  studied  law  i«rthe 
Law  School  of  Columbia  College  in  New  York  ana  was 
admitted  to  the  bar  in  1862.  He  was  District  Attorney 
for  the  Northwestern  Judicial  District  twelve  years, 


264 


JUDICIAL  HISTORY 


and  was  practicing  law  in  Northampton  when  he  was 
appointed  Judge  of  the  Superior  Court  in  1890. 

Henry  King  Braley,  son  of  Samuel  T.  and  Mary  A. 
Braley,  was  born  in  Rochester,  Mass.,  March  17,  1850. 
He  studied  law  in  the  office  of  Hosea  Kingman,  in 
Bridgewater,  and  was  admitted  to  the  bar  in  Plymouth, 
in  October,  1873.  He  settled  in  Fall  River,  and  con- 
tinued in  practice  there  until  1891,  when  he  was  ap- 
pointed Judge  of  the  Superior  Court.  He  was  City 
Solicitor  in  Fall  River  in  1874,  and  Mayor  in  1882-83. 
He  married  in  Bridgewater,  April  29, 1875,  Caroline  W., 
daughter  of  Philander  and  Sarah  T.  Leach.  He  is  still 
on  the  bench. 

John  Hopkins  was  born  in  Gloucester,  England,  in 
1840  and  graduated  at  Dartmouth  in  1862.  He  was 
admitted  to  the  Worcester  bar  in  1864  and  practiced  in 
Millbury  and  Worcester  until  his  appointment  in  1891 
to  the  Superior  Court  bench,  where  he  is  still  serving. 

Elisha  Burr  Maynard,  son  of  Walter  and  Hannah 
(Burr)  Maynard,  was  born  in  Wilbraham,  Mass.,  No- 
vember 21,  1842,  and  graduated  at  Dartmouth  in  1867. 
He  studied  law  with  George  M.  Stearns  and  Marcus  P. 
Knowlton  in  Springfield  and  was  admitted  to  the 
Hampden  bar  in  1868.  He  was  a  Representative  in 
1879,  Mayor  of  Springfield  in  1887-88,  and  was  ap- 
pointed in  1891  to  the  Superior  Court  bench.  He  mar- 
ried, August  25,  1870,  Kate  C,  daughter  of  Calvin  and 
Sarah  (Townshend)  Doty,  of  Springfield. 

Franklin  Goodridge  Fessenden  was  born  in  Fitch- 
burg,  Mass.,  in  1849.  He  studied  law  in  Greenfield 
and  graduated  at  the  Harvard  Law  School  in  1872  and 
was  admitted  in  that  year  to  the  Worcester  bar.  He 
was  appointed  in  1891  Judge  of  the  Superior  Court  and 
is  now  on  the  bench. 

John  William  Corcoran,  son  of  James  and  Catharine 


OF  MASSACHUSETTS. 


265 


Corcoran,  was  born  in  Batavia,  N".  Y.,  June  14,  1853. 
He  was  educated,  at  the  public  schools  in  Clinton,  Mass., 
at  St.  Johns  University,  N.  Y.,  and  at  the  College  of 
the  Holy  Cross  in  Worcester.  He  graduated  at  the 
Boston  University  Law  School  in  1875  and  after  ad- 
mission in  that  year  to  the  Worcester  bar  he  began 
practice  in  Clinton,  moving  later  to  Boston.  In  1890-91 
he  was  the  Democratic  candidate  for  Lieutenant  Gov- 
ernor and  in  1892  was  appointed  Judge  of  the  Superior 
Court,  which  position  he  resigned  in  1893.  He  married 
Margaret  J.,  daughter  of  Patrick  and  Mary  McDonald, 
in  Boston,  April  28,  1881. 

James  Bailey  Richardson,  son  of  John,  was  born  in 
Oxford,  IN".  H.,  December  9,  1832,  and  graduated  at 
Dartmouth  in  1857.  He  studied  law  in  Boston  with 
Hutchins  &  Wheeler  and  was  admitted  to  the  Suffolk 
bar  February  27,  1859.  In  1884  he  was  appointed  one 
of  a  commission  to  revise  the  charter  of  the  city  of  Bos- 
ton and  in  18S9  was  appointed  Corporation  Counsel  of 
Boston.  He  was  appointed  in  1892  Judge  of  the  Supe- 
rior Court  and  is  now  on  the  bench.  He  married,  in 
1865,  Lucy  Cushing,  daughter  of  A.  A.  Gould,  M.  D. 

Charles  Sumner  Lilley,  son  of  Charles  and  Cynthia 
(Huntley)  Lilley,  was  born  in  Lowell,  December  13, 
1851.  He  studied  law  in  Lowell  with  Arthur  P.  Bon- 
ney  and  was  admitted  to  the  Middlesex  bar  at  Cambridge 
in  June,  1877.  He  settled  in  Lowell,  was  Chairman 
of  the  Board  of  Aldermen  in  1879  and  Senator  in 
1880-81-86.  In  1884  he  was  a  Councillor  and  in 
1882-84  was  the  Democratic  candidate  for  Congress  in 
his  district.  In  1893  he  was  appointed  Judge  of  the 
Superior  Court  and  resigned  in  1900.  He  married  at 
Lowell,  April  4,  1891,  Clara,  daughter  of  Arthur  P. 
and  Emma  A.  (Call)  Bonney,  of  Lowell. 

Henry  Newton  Sheldon  was  born  in  Waterville, 


266 


JUDICIAL  HISTORY 


Maine,  in  1843,  and  graduated  at  Harvard  in  1863.  He 
studied  law  with  Josiah  G.  Abbott  in  Boston  and  was 
admitted  to  the  Suffolk  bar  in  April,  1866.  In  1874 
he  associated  himself  in  practice  with  Wilmon  W. 
Blackmar,  and  in  1894  was  appointed  Judge  of  the 
Superior  Court  and  is  now  on  the  bench. 

Francis  Almon  Gaskill,  son  of  Albert  and  Anna  S. 
Gaskill,  was  born  in  Blackstone,  Mass.,  January  3, 1846, 
and  graduated  at  Brown  in  1866.  He  studied  law  at 
the  Harvard  Law  School  and  in  the  office  of  George  F. 
Yerry  of  Worcester,  and  was  admitted  to  the  "Worcester 
bar  March  3, 1869.  He  settled  in  Worcester.  In  1883 
he  was  appointed  temporary  District  Attorney  and  in 
1886  was  chosen  District  Attorney,  and  in  1895  was 
appointed  Judge  of  the  Superior  Court,  which  position 
he  still  holds.  He  married  first  at  Providence,  Octo- 
ber 20,  1869,  Katherine  Mortimer,  daughter  of  Anthony 
B.  A.  and  Ann  E.  K.  (Dean)  Whitaker,  and  second  at 
Lynn,  July  12,  1892,  Josephine  L.,  daughter  of  Joseph 
J.  and  Phoebe  (Lovejoy)  Abbott. 

John  Henry  Hardy  has  been  noticed  as  Judge  of  the 
"  Municipal  Court  of  the  City  of  Boston."  He  was  ap- 
pointed to  the  Superior  Court,  September  17,  1896. 

Henry  Ward  well,  son  of  Moses  and  Amy  Swasey 
(Farley)  Ward  well,  was  born  in  Ipswich,  Mass.,  April  28, 
1840,  and  graduated  at  Dartmouth  in  1866.  He  studied 
law  with  Henry  W.  Paine  and  Robert  D.  Smith  of 
Boston  and  was  admitted  to  the  Suffolk  bar  August  1, 
1870.  He  was  a  Representative  in  1879-81,  and  was 
appointed  in  1896  Judge  of  the  Superior  Court,  which 
position  he  resigned  in  1898.  He  married,  October  6, 
1875,  Sarah  Osborne  Fitch,  at  Peabody. 

William  Burnham  Stevens,  son  of  William  F.  and  Mary 
J.  G.  (Burnham)  Stevens,  was  born  in  Stoneham,  Mass., 
March  23,  1843,  and  graduated  at  Dartmouth  in  1865. 


OF  MASSACHUSETTS. 


267 


He  studied  law  at  the  Harvard  Law  School  and  in  the 
office  of  Sweetser  &  Gardner  in  Boston,  and  was  ad- 
mitted to  the  Suffolk  bar  July  3,  1867.  He  was  Dis- 
trict Attorney  for  the  Northern  District  from  1880  to 
1890,  and  was  appointed  in  1898  Judge  of  the  Superior 
Court  and  is  now  on  the  bench.  He  married,  Octo- 
ber 20,  1868,  A.  Josie  Hill,  and  September  30,  1873, 
Mary  W.  Green. 

Charles  Upham  Bell,  son  of  James  and  Judith  A. 
(Upham)  Bell,  was  born  in  Exeter,  1ST.  H.,  February  26, 
1813,  and  graduated  at  Bowdoin  in  1863.  He  studied 
law  with  Charles  H.  Bell  of  Exeter  and  was  admitted 
to  the  Kockingham  County  bar  in  1866  and  to  the 
Essex  bar  in  1873.  He  settled  in  Lawrence  and  was 
appointed  in  1898  Judge  of  the  Superior  Court.  He 
married,  first,  Helen  M.,  daughter  of  Joseph  P.  and 
Charlotte  (Parker)  Pitman,  of  Laconia,  1ST.  H.,  and, 
second,  Elizabeth  W.,  sister  of  his  first  wife. 

John  Adams  Aiken  was  born  in  Greenfield,  Sep- 
tember 16,  1850,  and  graduated  at  Dartmouth  in  1874. 
He  was  a  representative  in  1883  and  in  1898  was  ap- 
pointed Judge  of  the  Superior  Court. 

Frederick  Lawton,  son  of  James  and  Sarah  S.  (Priest) 
Lawton,  was  born  in  Lowell,  May  10,  1852,  and  gradu- 
ated at  Harvard  in  1874.  He  studied  law  in  the  office 
of  G.  F.  Lawton  of  Lowell  and  was  admitted  to  the 
Middlesex  bar  at  Lowell  in  1880.  He  settled  in  Lowell, 
was  Senator  in  1893  and  in  1900  was  appointed  Judge 
of  the  Superior  Court.  He  married,  at  Lowell,  June  15, 
1880,  Helen  Spalding,  daughter  of  Sewall  G.  Mack. 

The  only  important  court  remaining  to  be  considered 
is  the  Court  of  Probate  concerning  which  as  it  has  ex- 
isted since  the  adoption  of  the  constitution  nothing  has 
yet  been  said  in  this  narrative.  In  both  the  Plymouth 
and  Massachusetts  colonies  the  probate  of  wills  and  the 


268 


JUDICIAL  HISTOEY 


administration  of  estates  of  deceased  persons  were  for 
most  of  the  time  within  the  jurisdiction  of  the  Assist- 
ants and  county  courts.  This  jurisdiction  was  dis- 
turbed during  the  brief  administrations  of  President 
Dudley  and  Governor  Andros  but  after  the  overthrow 
of  Andros  the  old  method  was  resumed  and  continued 
until  the  Province  of  Massachusetts  Bay  was  chartered. 
As  has  already  been  stated  the  Province  charter  placed 
probate  affairs  in  the  hands  of  the  Governor  and  Coun- 
cil who  claimed  the  right  to  appoint  Judges  and  Regis- 
ters  of  Probate  in  the  various  counties.  The  names  of 
those  officers  who  administered  probate  affairs  were 
given  in  the  chapter  on  the  provincial  period  of  our 
judicial  history. 

On  the  12th  of  March,  1784,  an  "  Act  for  establishing 
Courts  of  Probate  "  was  passed  providing  that  a  court 
shall  be  held  in  the  several  counties,  and  that  a  Judge 
and  Register  shall  be  appointed  in  each  county  and  that 
the  Supreme  Judicial  Court  shall  be  the  Supreme  Court 
of  Probate  with  appellate  jurisdiction  in  all  matters 
determinable  by  the  Probate  Judges. 

Under  this  Act  Judges  and  Registers  of  Probate  were 
appointed  until  by  an  amendment  of  the  Constitution 
ratified  May  23,  1855,  it  was  provided  that  in  1856  and 
every  fifth  year  thereafter  the  Register  should  be 
chosen  by  the  people  of  each  county  at  the  annual 
election  for  a  term  of  five  years.  In  1856  a  Court  of 
Insolvency  was  established  in  each  county  with  a  Judge 
and  Register  and  in  1858  the  offices  of  both  the  Pro- 
bate and  Insolvency  Courts  were  abolished  and  the 
offices  of  Judge  and  Register  of  Probate  and  Insolvency 
established,  the  Register  to  be  chosen  every  fifth  year 
by  the  people.  In  1862  the  Probate  Court  was  made 
a  Court  of  Record,  and  May  22,  1893,  it  was  provided 
that  a  second  Judge  should  be  appointed  in  Suffolk 


OF  MASSACHUSETTS. 


269 


County.  The  Judges  and  Registers  under  the  Consti- 
tution have  been  as  follows  : 

BARNSTABLE  COUNTY. 

Judges  of  Probate:  Daniel  Davis,  appointed  1780; 
Ebenezer  Bacon,  appointed  1799  ;  John  Davis,  appointed 
1800 ;  Job  C.  Davis,  appointed  1826  ;  Nymphas  Marston, 
appointed  1828  ;  George  Marston,  appointed  1856. 

Judge  of  Insolvency :  Simeon  N.  Small,  appointed 
1856. 

Judge  of  Probate  and  Insolvency :  Joseph  M.  Day, 
appointed  1859 ;  Hiram  P.  Harriman,  appointed  1883. 

Register  of  Probate,  Nathaniel  Freeman,  appointed 
1780;  Abner  Davis,  appointed,  1824;  Timothy  Reed, 
appointed  1836  ;  Nathaniel  Hinckley,  appointed  1853 ; 
George  Marston,  appointed,  1851 ;  Rufus  S.  Pope,  ap- 
pointed 1856. 

Registers  of  Insolvency :  Jonathan  Higgins,  appointed 
1856 ;  Joseph  M.  Day,  chosen  1857. 

Judge  of  Probate  and  Insolvency :  Jonathan  Higgins, 
chosen  1859;  Charles  Thacher,  Jr.,  chosen  1874;  Free- 
man H.  Lathrop,  chosen  1882. 

BERKSHIRE  COUNTY. 

Judges  of  Probate:  Timothy  Edwards,  appointed 
1781 ;  Jahleel  Wood  bridge,  appointed  1787 ;  William 
Walker,  appointed  1795  ;  William  P.  Walker,  appointed 
1824;  Daniel  1ST.  Dewey,  appointed  1848. 

Judge  of  Insolvency:  Henry  S.  Briggs,  appointed 
1856. 

Judge  of  Probate  and  Insolvency :  James  T.  Robin- 
son, 1859 ;  Edward  T.  Slocum,  appointed  1894. 

Registers  of  Probate:  William  Walker,  appointed 
1781 ;  Edward  Edwards,  appointed  1785  ;  Nathaniel  Bi- 
shop, appointed  1795 ;  George  Whitney,  appointed  1823  • 


270 


JUDICIAL  HISTORY 


Henry  W.  Bishop,  appointed  1826 ;  Francis  D.  Farley, 
appointed  1851 ;  John  Branning,  appointed  1851 ; 
Henry  W.  Taft,  appointed  1853. 

Register  of  Insolvency :  James  T.  Robinson,  ap- 
pointed 1856. 

Judge  of  Probate  and  Insolvency :  Andrew  J. 
Waterman,  chosen  1859 ;  Edward  T.  Slocum,  chosen 
1881 ;  Frederick  R.  Shaw,  chosen  1894. 

BRISTOL  COUNTY. 

Judges  of  Probate :  Benjamin  Williams,  appointed 
1780 ;  George  Leonard,  appointed  1785  ;  Seth  Padelford, 
appointed  1793 ;  Hodijah  Baylies,  appointed  1811 ; 
Oliver  Prescott,  appointed  1836. 

Judge  of  Insolvency :  Joshua  C.  Stone,  appointed 
1856. 

Judges  of  Probate  and  Insolvency:  Edmund  H. 
Bennett,  appointed  1859 ;  AVilliam  E.  Fuller,  appointed 
1881. 

Registers  of  Probate :  George  Leonard,  Jr.,  appointed 
1780 ;  William  Baylies,  appointed  1785  ;  Francis  Baylies, 
appointed  1812;  David  G.  W.  Cobb,  appointed  1822; 
Anselm  Bassett,  appointed  1833;  Henry  Williams,  ap- 
pointed 1852  ;  John  Daggett,  appointed  1851. 

Register  of  Insolvency  :  Augustus  L.  West,  appointed 
1856. 

Registers  of  Probate  and  Insolvenc}^ :  John  Daggett, 
chosen  1859  ;  Austin  S.  Cushman,  chosen  1866  ;  William 
E.  Fuller,  chosen  1869  ;  John  H.  Galligan,  chosen  1885  ; 
Arthur  M.  Alger,  chosen  1893. 

DUKES  COUNTY. 

Judges  of  Probate :  James  Athearne,  appointed  1780 ; 
George  Athearne,  appointed  1812 ;  Thomas  G.  May  hew, 
appointed  1838. 


OF  MASSACHUSETTS. 


271 


Judge  of  Insolvency:  Leavitt  Thaxter,  appointed 
1857. 

Judges  of  Probate  and  Insolvency  :  Thomas  G.  May- 
hew,  appointed  1859  ;  Joseph  T.  Pease,  appointed  1874 ; 
Charles  G.  M.  Dunham,  appointed  1897. 

Eegisters  of  Probate:  Benjamin  Smith,  appointed 
1780  ;  Thomas  Cooke,  appointed  1781 ;  Samuel  Smith, 
appointed  1784 ;  Cornelius  Marchant,  appointed  1821 ; 
Barnard  C.  Marchant/appointed  1840  ;  Hebron  Vincent, 
appointed  1853 ;  Eichard  L.  Pease,  appointed  1854. 

Kegister  of  Insolvency:  Frederick  E.  Tirrill,  ap- 
pointed 1857. 

Registers  of  Probate  and  Insolvency :  Hebron  Yin- 
cent,  chosen  1858;  Beriah  T.  Hillman,  chosen  1891. 

ESSEX  COUNTY. 

Judges  of  Probate :  Benjamin  Greenleaf,  appointed 
1781 ;  Samuel  Holten,  appointed  1796 ;  Daniel  A.  White, 
appointed  1815  ;  Nathaniel  S.  Howe,  appointed  1854. 

Judge  of  Insolvency  :  Abner  C.  Goodell,  appointed 
1856. 

Judges  of  Probate  and  Insolvency  :  George  F.  Choate, 
appointed  1859  ;  Rollin  E.  Harmon,  appointed  1889. 

Eegisters  of  Probate  :  Daniel  Noyes,  appointed  1781 ; 
Nathaniel  Lord,  3d,  appointed  1815  ;  Edwin  Lawrence, 
appointed  1852 ;  George  R.  Lord,  appointed  1854 ;  James 
Eopes,  appointed  1856  ;  Jonathan  Perley,  Jr.,  appointed 
1857 ;  Charles  H.  Hudson,  appointed  1857. 

Eegisters  of  Probate  and  Insolvency  :  Abner  C.  Good- 
ell, chosen  1859  ;  Jeremiah  T.  Mahoney,  chosen  1878. 

FRANKLIN  COUNTY. 

Judges  of  Probate  :  Samuel  Smead,  appointed  1811 ; 
Jonathan  Leavitt,  appointed  1812  ;  Eichard  E.  New- 
comb,  appointed  1821 ;  George  Grinnell,  appointed  1849  ; 


272 


JUDICIAL  HISTORY 


Horatio  G.  Parker,  appointed  1853 ;  Franklin  Riple}r, 
appointed  1854. 

Judges  of  Probate  and  Insolvency  :  Charles  Mattoon, 
appointed  1858  :  Chester  C.  Conant,  appointed  1870; 
Francis  M.  Thompson,  appointed  1899. 

Registers  of  Probate :  Isaac  B.  Barber,  appointed  1811 ; 
George  Grinnell,  Jr.,  appointed  1811 ;  Wendell  T.  Davis, 
appointed  1849 ;  Samuel  O.  Lamb,  appointed  1851 ; 
Charles  Mattoon,  appointed  1853 ;  Charles  Mattoon, 
chosen  1856. 

Registers  of  Probate  and  Insolvency :  Charles  J. 
Ingersoll,  chosen  1858 ;  Chester  C.  Conant,  chosen  1863 ; 
Francis  M.  Thompson,  chosen  1870 ;  Francis  N. 
Thompson,  chosen  1899. 

HAMPDEN  COUNTY. 

Judges  of  Probate  :  Samuel  Fowler,  appointed  1812 ; 
John  Hooker,  appointed  1813 ;  Oliver  B.  Morris,  ap- 
pointed 1829. 

Judge  of  Insolvency:  John  M.  Stebbins,  appointed 
1856. 

Judges  of  Probate  and  Insolvency :  John  Wells, 
appointed  1858  ;  William  S.  Shurtleff,  appointed  1863 ; 
Charles  L.  Long,  appointed  1896. 

Registers  of  Probate :  William  Blair,  appointed  1812  ; 
Oliver  B.  Morris,  appointed  1813 ;  Justin  Willard,  ap- 
pointed 1829 ;  William  L.  Smith,  appointed  1851 ;  Henry 
Smith,  appointed  1853 ;  Charles  A.  Winchester,  chosen 
1855  ;  Charles  R.  Ladd,  chosen  1857. 

Register  of  Insolvency :  William  S.  Shurtleff,  chosen 
1857.' 

Registers  of  Probate  and  Insolvency :  William  S. 
Shurtleff,  chosen  1859  ;  Samuel  B.  Spooner,  chosen  1863. 

HAMPSHIRE  COUNTY. 

Judges  of  Probate:  Eleazer  Porter,  appointed  1781 ; 


OF  MASSACHUSETTS. 


273 


Samuel  Henshaw,  1797 ;  Jonathan  Leavitt,  1809 ;  Jo- 
seph Lyman,  1810;  Samuel  Hinckley,  1811;  Ithamar 
Conkey,  1834. 

Judge  of  Insol. :  Horace  I.  Hodge,  1856. 

Judges  of  Prob.  and  Insol. :  Samuel  F.  Lyman,  1858 ; 
Samuel  T.  Spaulding,  1873 ;  William  G.  Bassett,  1S7S. 

Keg.  of  Prob. :  John  Chester  Williams,  1781 ;  Sam- 
uel Hinckley,  1787;  Isaac  C.  Bates,  1816;  Samuel  P. 
Lyman,  1827;  A.  Perry  Peck,  1855. 

Keg.  of  Insol. :  K.  B.  Hubbard,  chosen  1856. 

Reg.  of  Prob.  and  Insol. :  Luke  Lyman,  1858 ;  Hub- 
bard M.  Abbott,  1883. 

MIDDLESEX  COUNTY. 

Judges  of  Prob. :  Oliver  Prescott,  1780  ;  James  Pres- 
cott, 1S05;  Samuel  P.  P.  Pay,  1821 ;  William  A.  Rich- 
ardson, 1856. 

Judge  of  Insol. :  Luther  J.  Fletcher,  1857. 

Judges  of  Prob.  and  Insol. :  William  A.  Richardson, 
1858;  George  M.  Brooks,  1872;  Charles  J.  Mclntire, 
1894;  George  F.  Lawton,  1S94. 

Reg.  of  Prob.:  James  Winthrop,  1780;  James  Fos- 
ter, 1817;  Isaac  Fiske,  1817;  Alonzo  V.  Lynde,  1851; 
Alfred  A.  Prescott,  1853. 

Reg.  of  Insol. :  Joseph  II.  Tyler,  1856. 

Reg.  of  Prob.  and  Insol.:  Joseph  H.  Tyler,  1858; 
Isaac  F.  Jones,  1859 ;  Samuel  H.  Folsom,  1877. 

NANTUCKET  COUNTY. 

Judges  of  Prob. :  Jethro  Huzzey,  1789  ;  Isaac  Coffin, 
1808  ;  Samuel  Mitchell,  1843. 

Judge  of  Insol. :  Edward  M.  Gardner,  1856. 

Judges  of  Prob.  and  Insol. :  Samuel  Mitchell,  1859 ; 
James  M.  Bunker,  1872 ;  Thaddeus  C.  Defriez,  1873. 

Reg.  of  Prob. :  Abner  Coffin,  1791 ;  Josiah  Barker,  Jr., 
18 


274 


JUDICIAL  HISTORY 


1802  ;  Josiah  Huzzey,  1818  ;  Jonathan  T.  Barney,  1825  ; 
Timothy  Huzzey,  1825 ;  George  Cobb,  1837 ;  William 
Barker,  1853  ;  George  Cobb,  1854. 

Reg.  of  Insol.  :  George  Cobb,  1856. 

Eeg.  of  Prob.  and  Insol. :  William  Barney,  1858 ; 
Thadcleus  C.  Defriez,  1868;  Samuel  Swain,  1873;  Ben- 
jamin F.  Brown,  1888 ;  Henry  Riddell,  1893. 

NORFOLK  COUNTY. 

Judges  of  Prob. :  William  Heath,  1793  ;  Edward  H. 
Robbins,  1814;  Sherman  Leland,  1830;  William  Sher- 
man Leland,  1853. 

Judge  of  Insol :  Francis  Hilliard,  1856. 

Judges  of  Probate  and  Insolvency  :  George  White, 
appointed  1858;  James  H.  Flint,  appointed  1898. 

Registers  of  Probate :  Samuel  Ha  ven,  appointed  1793  ; 
Jonathan  H.  Cobb,  appointed  1833. 

Register  of  Insolvency  :  Erastus  Worthington,  chosen 
1856. 

Register  of  Probate  and  Insolvency :  Jonathan  H. 
Cobb,  chosen  1858;  Jonathan  Cobb,  chosen  1878. 

PLYMOUTH  COUNTY. 

Judges  of  Prob.:  Joseph  dishing,  1778;  Joshua 
Thomas,  1793;  Wilkes  Wood,  1821;  Aaron  Hobart, 
1844. 

Judge  of  Insol. :  David  Perkins,  1856. 

Judges  of  Prob.  and  Insol. :  Wm.  H.  Wood,  1858 ; 
Jesse  E.  Keith,  1S84;  Benjamin  W.  Harris,  1890. 

Reg.  of  Prob. :  Isaac  Lothrop,  1776  ;  Beza  Hay  ward, 
1809  ;  Jacob  H.  Loud,  1831 ;  Moses  Bates,  1852 ;  Joseph 
H.  Beal,  1853;  Samuel  H.  Doten,  1857. 

Reg.  of  Prob.  and  Insol. :  Daniel  E.  Damon,  1858 ; 
Edward  E.  Hobart,  1883;  John  C.  Sullivan,  1888. 

Reg.  of  Insol. :  Nathan  King,  1856. 


OF  MASSACHUSETTS. 


275 


SUFFOLK  COUNTY. 

Judges  of  Probate:  Oliver  Wendell,  appointed  1780; 
James  Sullivan,  appointed  1788 ;  Thomas  Dawes,  ap- 
pointed 1790;  George  Richards  Minot,  appointed  1792; 
Thomas  Dawes,  Jr.,  appointed  1802 ;  Joseph  Hall,  ap- 
pointed 1825  ;  John  Heard,  appointed  1836  ;  Willard 
Phillips,  appointed  1839 ;  Edward  Greeley  Loring, 
appointed  18 ±7 ;  John  P.  Putnam,  appointed  1858. 

Judge  of  Insolvency :  Isaac  Ames,  appointed  1856. 

Judges  of  Probate  and  Insolvency :  Isaac  Ames,  ap- 
pointed 1858  ;  John  W.  McKim,  appointed  1877 ;  Rob- 
ert Grant,  appointed  1893. 

Registers  of  Probate :  William  Cooper,  held  over 
from  1776 ;  Perkins  Nichols,  appointed  1799  ;  John 
Heard,  appointed  1806 ;  David  Everett,  appointed  1811 ; 
John  Heard,  appointed  1812 ;  Oliver  B.  Peabody,  ap- 
pointed 1836 ;  Horatio  M.  Willis,  appointed  1842 ; 
Thomas  Gill,  appointed  1852 ;  Horatio  M.  Willis,  ap- 
pointed 1S53  ;  William  C.  Browne,  1855. 

Register  of  Insolvency  :  Charles  W.  Storey,  chosen 
1856. 

Registers  of  Probate  and  Insolvency :  William  C. 
Browne,  chosen  1858  ;  William  S.  King,  chosen  1870  ; 
Patrick  R.  Guiney,  chosen  1871 ;  Elijah  George,  chosen 
1882. 

WORCESTER  COUNTY. 

Judges  of  Probate  :  Artemas  Ward,  appointed  1781 ; 
Joseph  Dorr,  appointed  1783 ;  Nathaniel  Paine,  ap- 
pointed 1801 ;  Ira  M.  Barton,  appointed  1836 ;  Ben- 
jamin F.  Thomas,  appointed  1844  ;  Thomas  Kinnicutt, 
appointed  1848  ;  Dwight  Foster,  appointed  1S57. 

Judge  of  Insolvency :  Alexander  II.  Bullock,  ap- 
pointed 1856  ;  William  W.  Rice,  appointed  1856. 

Judges  of  Probate  and  Insolvency  :  Henry  Chapin, 


276 


JUDICIAL  HISTORY 


appointed  1858 ;  Adin  Thayer,  appointed  1878 ;  Wil- 
liam T.  Forbes,  appointed  1888. 

Register  of  Probate :  Theophilus  "Wheeler,  appointed 
1793  ;  C.  G.  Prentiss,  chosen  1837. 

Register  of  Probate  and  Insolvency  :  John  J.  Piper, 
chosen  1858  ;  Charles  E.  Stevens,  chosen  1868  ;  Fred- 
erick W.  South  wick,  chosen  1883;  George  H.  Har- 
low, chosen  1893. 

In  the  probate  history  of  the  Commonwealth  there 
have  occurred  three  removals  of  Judges,  one  by  im- 
peachment and  two  by  address.  There  has  been  but 
one  instance  of  removal  of  a  Judge  in  the  other  courts, 
that  of  Theophilus  Bradbury,  who  was  removed  in 
1803  by  address  from  the  bench  of  the  Supreme  Ju- 
dicial Court.  Judge  Bradbury,  a  highly  esteemed  and 
honorable  official,  was  stricken  with  paralysis  in  Febru- 
ary, 1802,  and  wholly  disabled.  In  July,  1803,  after 
more  than  a  year  of  disability,  he  was  removed  in  the 
only  manner  known  to  the  Constitution.  Of  the  three 
Judges  of  Probate,  James  Prescott  of  Middlesex  County 
was  impeached  in  1821,  and  Edward  Greeley  Loring 
was  removed  by  address  in  1858,  and  the  removals  of 
both  were  noted.  The  trial  of  Judge  Prescott  began 
on  the  6th  of  February,  1821  and  continued  until  the 
27th  of  April,  and  many  of  the  persons  associ- 
ated with  it  as  Senators,  Managers  and  Council 
were  men  of  ability  and  distinction.  Among  the  Sena- 
tors who  acted  as  Judges  were  J.  B.  Varnum,  William 
Gray,  John  Mason  Williams,  Peter  C.  Brooks,  John 
Wells,  Dudley  L.  Pickman,  Jonathan  D wight,  William 
Sullivan,  Robert  Rantoul  and  Ebenezer  Moseley.  The 
Managers  on  the  part  of  the  house  were  John  G.  King, 
Levi  Lincoln,  whose  place  was  taken  by  Horatio  G. 
Newcomb,  William  Baylies,  Warren  Dutton,  Samuel 
P.  P.  Fay,  Lemuel  Shaw  and  Sherman  Leland.  The 


OF  MASSACHUSETTS. 


277 


Counsel  for  Judge  Prescott  were  Samuel  Hoar,  Daniel 
Webster,  William  Prescott,  George  Blake,  Samuel  Hub- 
bard and  Augustus  Peabody,  an  array  of  legal  ability 
never  before  or  since  gathered  at  any  trial  in  Massa- 
chusetts. The  articles  of  impeachment,  fifteen  in  num- 
ber, included  for  the  most  part  charges  of  indiscretion 
in  accepting  fees  and  acting  as  an  adviser  in  cases 
pending  in  his  own  court.  On  three  of  these  articles 
he  was  found  guilty  and  removed  from  office. 

The  removal  by  address  of  Judge  Loring  was  the  re- 
sult of  no  irregularity  in  the  administration  of  his 
official  duties,  but  was  based  on  the  ground  that  hold- 
ing the  office  of  Judge  of  Probate  was  incompatible 
with  holding  the  office  of  United  States  Commissioner, 
both  of  which  had  been  held  by  him  for  some  years. 
As  United  States  Commissioner  he  had  heard  an  appli- 
cation for  the  rendition  of  Anthony  Burns,  a  fugitive 
slave,  to  his  alleged  master,  and  rendered  judgment  in 
accordance  with  the  application.  After  this  act  a 
pressing  and  continued  demand  had  been  made  on  the 
Legislature  for  his  removal.  His  removal  was  attempted 
at  various  times  on  the  ground  that  he  was  continuing 
in  office  in  violation  of  the  provisions  of  section  13, 
chapter  459  of  the  Laws  of  1855,  which  declared  "  that 
no  person  who  holds  any  office  under  the  laws  of  the 
United  States  which  qualifies  him  to  issue  any  warrant 
or  other  process,  or  to  grant  any  certificate  under  the 
Acts  of  Congress  passed  in  1793  and  1850,  or  to  serve 
the  same,  shall  at  the  same  time  hold  any  office  of 
honor,  trust  or  emolument  under  the  laws  of  the  Com- 
monwealth." Resolves  in  favor  of  his  removal  on  the 
ground  of  his  violation  of  this  law  had  been  defeated 
several  times,  either  by  a  vote  of  the  Legislature  or  by 
executive  veto  on  the  declared  ground  that  the  law  of 
1855  was  unconstitutional. 


278 


JUDICIAL  HISTORY 


When  a  renewed  attempt  was  made  to  remove  him  in 
1858,  the  writer,  then  a  member  of  the  Senate,  was  chair- 
man of  the  special  committee  to  whom  the  petitions  for 
removal  were  referred.  The  late  Joseph  M.  Churchill 
was  chairman  on  the  part  of  the  House,  in  which  branch 
the  petitions  had  been  presented,  and  he  was  requested 
by  the  committee  to  draft  a  report  in  favor  of  the  pass- 
age of  an  address.  The  writer,  believing  that  a  removal 
would  never  be  accomplished  on  the  grounds  that  had 
been  successfully  attacked,  and  believing  also  that  the 
report  of  the  House  chairman  would  repeat  those 
grounds,  wrote  of  his  own  volition  a  report  with  reasons 
for  removal  .which  would  not  only  avoid  question  of 
constitutionality,  but  would  also  commend  themselves 
to  the  minds  of  those  whose  anti-slavery  sentiments 
were  not  pronounced. 

At  the  next  meeting  of  the  committee,  finding  that 
the  report  of  Mr.  Churchill  was  what  the  writer  ex- 
pected, he  asked  permission  after  it  had  been  read  to 
read  his  own,  which  was  at  once  accepted  by  a  majority 
of  the  committee.  In  order  that  the  reasons  which 
finally  secured  the  favorable  action  of  the  Legislature 
and  the  Executive  may  be  fully  understood,  the  report 
is  made  a  part  of  this  narrative. 

"  House  of  Representatives,  March  9,  1858. 

"  The  joint  special  committee  to  whom  were  referred 
the  several  petitions  for  the  removal  of  Edward  Greeley 
Loring  from  the  office  of  Judge  of  Probate  for  the 
County  of  Suffolk,  have  considered  the  same  and  report. 

"  The  Constitution  provides  that  '  all  judicial  officers 
duly  appointed,  commissioned  and  sworn,  shall  hold 
their  offices  during  good  behavior  excepting  such  con- 
cerning whom  there  is  a  different  provision  made  in  the 
Constitution ;  provided,  nevertheless,  the  Governor  with 


OF  MASSACHUSETTS. 


279 


the  consent  of  the  Council  may  remove  them  upon  the 
address  of  both  houses  of  the  Legislature.'  The  exer- 
cise of  this  right  in  the  hands  of  the  Governor  and  Coun- 
cil and  the  two  branches  of  the  Legislature  is  unre- 
stricted. Any  reasons,  unless  they  may  be  such  as  are 
based  on  misconduct  and  maladministration  in  office, 
which  ma}^  seem  sufficient,  will  justify  removal  by  ad- 
dress. 

"  In  the  year  1840,  Edward  Greeley  Loring,  was  ap- 
pointed Commissioner  of  the  United  States  to  take  bail 
and  affidavits  pursuant  to  the  Acts  of  Congress  passed 
in  1812  and  1817.  In  1846  he  was  appointed  Judge  of 
Probate  for  the  County  of  Suffolk.  At  that  time  under 
the  Act  of  Congress  of  1793,  jurisdiction  in  all  cases  of 
the  extradition  of  fugitives  from  service  or  labor  was 
vested  in  any  Magistrate  of  a  county,  city  or  town 
corporate.  The  duties  imposed  on  a  Commissioner  in 
1810,  though  enlarged  by  Acts  of  Congress  subse- 
quently were  of  such  a  character  that  perhaps  no  valid 
reason  existed  why  the  offices  of  Judge  of  Probate,  and 
Commissioner  of  the  United  States  should  not  be  held 
and  their  separate  functions  discharged  by  one  and  the 
same  person. 

"  But  by  the  Act  of  Congress  passed  in  1850,  the  juris- 
diction in  question  was  transferred  to  the  Commissioners 
of  the  United  States,  and  in  the  language  of  that  Act 
Edward  Greeley  Loring,  as  one  of  the  Commissioners, 
was  '  required  to  exercise  and  discharge  all  the  powers 
and  duties  conferred  by  this  Act.'  This  transfer  in- 
creased the  duties  and  responsibility  of  the  Commis- 
sioners and  so  changed  their  character  that  the  holding 

©  © 

of  that  office  became  in  the  opinion  of  your  Committee 
incompatible  with  the  holding  of  the  office  of  Judge  of 
Probate ;  that  a  faithful  discharge  of  the  duties  of  the 
one  became  inconsistent  with  the  proper  discharge  in 
all  cases  of  the  duties  of  the  other. 


280 


JUDICIAL  HISTORY 


"  A  single  illustration  will  suggest  the  conflict  which 
might  arise  in  the  exercise  of  the  powers  and  duties 
imposed  by  the  two  offices.  A  slave  mother  dies  in 
Massachusetts  and  her  children  are  brought  before  the 
Court  of  Probate  for  the  appointment  of  a  guardian. 
The  Judge  of  Probate  by  the  laws  of  Massachusetts  is 
for  the  time  their  protector  and  friend,  and  while  the 
hearing  is  pending  the  same  Judge  in  his  capacity  as  Com- 
missioner is  called  upon  to  issue  a  warrant  for  their  seiz- 
ure as  the  property  of  a  Southern  slave  owner. 

"  Again  the  Constitution  provides  that  '  the  Judges  of 
Probate  of  wills  and  for  granting  letters  of  administra- 
tion shall  hold  their  Courts  at  such  place  or  places  on 
fixed  days  as  the  convenience  of  the  people  shall  require, 
and  the  Legislature  shall  from  time  to  time  hereafter 
appoint  such  times  and  places.'  These  times  and  places 
have  been  fixed  by  the  Legislature  agreeable  to  the 
wants  and  convenience  of  the  people. 

"  It  must  be  apparent  that  the  assumption  or  occupa- 
tion by  any  Judge  of  Probate  of  any  office  whose  duties 
might  interfere  with  the  discharge  of  his  probate  duties 
at  the  times  and  places  thus  constitutionally  prescribed 
is  improper  and  after  due  notice  is  a  sufficient  cause  of 
removal.  It  cannot  be  denied  that  a  judicial  office 
under  the  laws  of  the  United  States  whose  duties  are 
compulsory  upon  the  incumbent  may  be  incompatible 
with  a  judicial  office  under  the  laws  of  Massachusetts 
whose  duties  are  no  less  compulsory.  Kow  no  limit  is  to 
be  presumed  to  the  amount  of  duties  which  a  Commis- 
sioner may  be  called  upon  to  perform.  If  the  discharge 
of  the  duties  of  Commissioners  were  voluntary  under  the 
Act  of  1850,  the  mere  occupation  of  the  office  might  be 
unobjectionable,  but  in  the  language  of  Judge  Loring 
in  his  protest  in  1855,  '  the  duty  of  Commissioners  of 
the  Circuit  Court  of  the  United  States  under  the  law  of 


OF  MASSACHUSETTS. 


281 


1S50  is  imperative  upon  them '  aud  '  an  application  made 
pursuant  to  law  to  any  one  Commissioner  fixes  that  duty 
on  him  and  after  such  application  he  can  neither  decline 
it  nor  evade  it.'  It  is  clear  then  that  even  if  such  applica- 
tions were  rare  they  might  be  made  at  the  very  time 
fixed  by  the  law  for  the  performance  of  his  probate 
duties,  and  if  numerous  they  might  prevent  their  per- 
formance altogether.  The  fact  that  during  the  trial 
of  Anthony  Burns  such  a  conflict  existed  as  compelled 
Judge  Loring  in  the  discharge  of  duties  as  Commissioner 
to  adjourn  the  Court  of  Probate  and  postpone  its  busi- 
ness, sufficiently  confirms  the  incompatibility  in  ques- 
tion. 

"  But  the  duties  of  Commissioners  in  connection  with 
the  extradition  of  fugitive  slaves  are  not  the  only  duties 
which  might  conflict  with  the  proper  discharge  of  the 
duties  of  Judge  of  Probate.  Pursuant  to  several  Acts 
of  Congress  passed  subsequently  to  the  appointment  of 
Judge  Loring  as  Commissioner  in  1840,  he  is  liable  to 
be  called  on  to  act  in  cases  of  extradition  of  fugitives 
from  foreign  countries,  and  issue  warrants  and  hold 
preliminary  examinations  in  cases  of  revolts,  mutiny 
and  affrays  on  shipboard,  and  a  great  variety  of  crimes 
and  offences  committed  on  sea  and  land  within  the 
jurisdiction  of  the  United  States.  These  duties  enlarg- 
ing from  year  to  year  aid  still  further  in  constituting 
the  office  of  United  States  Commissioner  such  an  office 
as  cannot  with  propriety  be  held  by  a  judicial  officer 
under  the  laws  of  Massachusetts.  When  we  add  to 
this  interference  of  official  duties,  their  opposite  and 
conflicting  natures,  the  incompatibility  is  the  more 
manifest. 

"  This  incompatibility  has  been  long  since  recognized 
by  the  laws  of  the  Commonwealth  and  by  the  members 
of  successive  Legislatures.    The  law  of  1843,  though 


282 


JUDICIAL  HISTORY 


applicable  to  magistrates  of  this  Commonwealth  in  the 
performance  of  the  duties  imposed  upon  them  by  the 
Act  of  Congress  of  1793,  was  clearly  indicative  of  the 
determination  of  the  people  of  Massachusetts  that  no 
magistrate  in  judicial  office  should  participate  in  the 
extradition  of  slaves.  The  sentiment  and  spirit  of  that 
law  are  as  clearly  violated  whether  that  participation 
is  had  by  a  magistrate  of  Massachusetts  as  such  acting 
under  the  law  of  1793,  or  by  a  Commissioner  of  the 
United  States,  acting  under  the  law  of  1850,  who  is  at 
the  same  time  a  judicial  officer  under  the  laws  of  the 
Commonwealth.  In  conformity  with  the  spirit  of  this 
law  the  Legislature  declared  by  Kesolves  in  1850  'that 
the  sentiments  of  the  people  of  Massachusetts  as  ex- 
pressed in  their  legal  enactments  in  relation  to  the 
delivering  up  of  fugitive  slaves  remain  unchanged,' 
and  'that  the  people  of  Massachusetts,  in  the  main- 
tenance of  these  their  well  known  and  invincible  prin- 
ciples, expect  that  their  officers  and  representatives  will 
adhere  to  them  at  all  times,  on  all  occasions  and  under 
all  circumstances.' 

"  The  law  of  1855  in  a  more  positive  manner  recognizes 
the  same  principle  and  applies  it  to  the  condition  of 
things  existing  in  consequence  of  the  law  of  Congress 
passed  in  1850.  In  direct  contravention  of  the  terms 
and  spirit  of  this  law,  Judge  Loring  now  holds  the  two 
offices  of  Judge  of  Probate  and  United  States  Commis- 
sioner. Indeed  the  whole  current  of  sentiment  and  law 
in  Massachusetts  during  the  last  fifteen  years  has  enun- 
ciated the  principle  that  no  officers  of  this  Common- 
wealth shall  engage  in  the  extradition  of  or  occupy 
any  office  among  whose  duties  such  extradition  may 
be  counted.  The  same  doctrine  has  been  endorsed  and 
confirmed  by  the  address  of  two  Legislatures  to  the 
Governor  of  the  Commonwealth  for  the  removal  of  the 
Judge  who  has  disregarded  and  violated  it. 


OF  MASSACHUSETTS. 


283 


"  For  these  reasons  in  the  opinion  of  the  committee 
the  Legislature  is  called  upon  to  address  the  Governor 
to  remove  Edward  Greeley  Loring  from  the  office  of 
Judge  of  Probate  for  the  county  of  Suffolk.  They  do 
not  feel  obliged  to  base  their  grounds  for  his  removal 
upon  the  law  of  1855,  and  indeed  to  establish  the  entire 
validity  of  these  grounds,  in  their  opinion,  it  is  not 
necessary  to  regard  that  law,  except  so  far  as  it  is  de- 
claratory of  the  sentiment  of  the  people.  If  that  law 
is  constitutional,  it  is  sufficient  to  say  that  its  violation 
is  a  valid  reason  for  the  address.  If  it  is  unconstitu- 
tional, they  hold  that  the  principle  so  long  acknowledged 
which  dictated  its  enactment  is  also  abundant  cause 
and  justification. 

"  Ample  notice  has  been  given  to  Judge  Loring  of 
the  wishes  of  the  people  as  expressed  through  their 
representatives  and  ample  time  afforded  him  to  respect 
and  yield  to  them.  While  Judge  of  Probate  he  still 
holds  the  office  of  United  States  Commissioner  in  de- 
fiance of  the  sentiment  of  the  Commonwealth  and  his 
removal  by  address  is  the  only  remedy  which  the  Con- 
stitution recognizes  or  provides. 

"  Your  committee  respectfully  recommend  that  the 
accompanying  address  be  sent  to  the  Governor  request- 
ing him,  with  the  consent  of  the  Council,  to  remove 
Edward  Greeley  Loring  from  the  office  of  Judge  of 
Probate  for  the  County  of  Suffolk. 

"  And  your  committee  further  recommend  that  a 
joint  committe  of  two  on  the  part  of  the  Senate  and 
five  on  the  part  of  the  House  be  appointed  to  present 
said  address  to  the  Governor." 

The  address  was  adopted  by  the  Legislature  and  pre- 
sented by  a  committee,  of  which  the  writer  was  chair- 
man, to  Nathaniel  P.  Banks,  then  Governor,  who,  with 
the  consent  of  the  Council,  promptly  caused  the  re- 
moval. 


284 


JUDICIAL  HISTORY 


The  report  was  signed  by  William  T.  Davis  and 
Joseph  W.  Cornell  on  the  part  of  the  Senate,  and  Jo- 
seph M.  Churchill,  Dexter  F.  Parker,  George  Stevens 
and  W.  F.  Arnold  on  the  part  of  the  House.  William 
Page,  the  only  other  member  of  the  committee,  made  a 
minority  report  in  opposition  to  the  address,  and  Messrs. 
Churchill,  Arnold,  Parker  and  Cornell  reported  that 
while  they  concurred  in  the  report,  they  favored  the 
removal  for  the  additional  reason  "  that  the  said  Ed- 
ward Greeley  Loring,  in  violation  of  the  provisions  of 
the  13th  Section  of  Chapter  459  of  the  Acts  of  1855, 
holds  the  office  of  Judge  of  Probate  for  the  County  of 
Suffolk,  and  also  the  office  of  United  States  Commis- 
sioner, with  power  to  issue  process  and  grant  certificates 
under  the  Act  of  Congress  approved  September  18, 
A.  D.  1850,  known  as  the  Fugitive  Slave  Act." 

In  an  earlier  part  of  this  narrative  the  names  and 
short  sketches  were  given  of  the  Attorney  Generals 
and  Solicitor  Generals  down  to  the  Revolution. 

So  far  as  the  office  of  Solicitor  General  is  concerned, 
it  is  only  necessary  to  say  that  it  ceased  to  exist  for  a 
time  after  the  Revolution,  and  Avas  revived  by  an  Act 
passed  March  4,  1800,  which  provided  for  the  appoint- 
ment of  a  Solicitor  General  after  the  first  of  July  in  that 
year.  On  the  17th  of  June  an  Act  was  passed  fixing  his 
salary  when  appointed,  and  Daniel  Davis  was  appointed 
January  20,  1S02,  and  served  until  the  office  was  abol- 
ished in  1832.  Though  in  practice  the  Solicitor  Gen- 
eral seems  to  have  had  charge  of  the  criminal  business, 
and  the  Attorney  General  the  civil,  the  Act  of  March  4, 
1801,  provided  "  that  at  any  time  after  the  first  of  July 
a  Solicitor  General  may  be  appointed  to  do  and  perform 
similar  duties  with  the  Attorney  General." 

Mr.  Davis  was  born  in  Barnstable,  May  8,  1762,  and 
after  studying  law  with  Shearjashub  Bourne  was  ad- 


OF  MASSACHUSETTS. 


285 


mitted  to  the  bar  in  1782.  He  settled  in  Falmouth, 
now  Portland,  and  was  one  of  five  lawyers  practicing 
at  that  time  in  the  District  of  Maine,  the  others  being 
George  Thacher,  Roland  Cushing,  Timothy  Langdon 
and  William  Lithgow.  He  served  six  years  in  the  Sen- 
ate, six  years  in  the  House,  was  from  1796  to  1801 
United  States  Attorney  for  the  District  of  Maine,  and 
in  January,  1S02,  was  appointed  Solicitor  General.  In 
1801  he  removed  to  Boston,  and  after  his  retirement 
had  his  residence  in  Cambridge,  where  he  died  Octo- 
ber 27,  1835.  With  regard  to  the  termination  of  the 
office  of  Solicitor  General,  who  had  charge  of  the  crim- 
inal business  of  the  Commonwealth,  while  the  Attorney 
General  had  charge  of  its  civil  business,  a  singular  act 
was  passed  in  1821.  The  office  of  Solicitor  General 
was  originally  established  in  1767  more  for  the  purpose 
of  giving  a  position  to  Jonathan  Sewall  than  of  meet- 
ing a  public  necessity.  It  had  existed  many  years  as 
an  unnecessary  running  mate  with  that  of  Attorney 
General,  and  the  Legislature  began  to  realize  that  the 
two  offices  were  more  than  the  public  business  required. 
The  incumbents  were  two  excellent  men,  highly  es- 
teemed by  the  people,  Mr.  Davis,  who  held  one  office 
about  twenty  years,  and  Perez  Morton,  who  had  held 
the  other  since  1810.  The  Legislature  desiring  to  abol- 
ish one  of  the  offices,  but  reluctant  to  make  what  might 
appear  to  be  an  invidious  distinction,  provided  by  the 
Act  above  referred  to,  "  that  whenever  the  office  of 
Attorney  General  or  Solicitor  General  shall  be  vacant 
by  death,  resignation  or  otherwise,  the  salary  annexed 
to  the  office  which  shall  first  so  become  vacant  as  afore- 
said, shall  thenceforth  cease  and  determine."  But  as 
neither  death  nor  resignation  came  to  the  aid  of  the 
Legislature,  it  passed  an  Act  in  1832  abolishing  the  office 
of  Solicitor  General. 


286 


JUDICIAL  HISTORY 


The  Attorney  Generals  since  the  Kevolution  have 
been  as  follows : 

Robert  Treat  Paine  was  appointed  during  the  Revo- 
lution and  held  over  until  1790,  when  on  the  12th  of 
February  in  that  year  James  Sullivan  was  appointed. 
Barnabas  Bidwell  succeeded  on  the  15th  of  June,  1807, 
Perez  Morton  on  the  7th  of  September,  1810,  and 
James  T.  Austin,  May  21,  1832.  Mr.  Austin  held 
office  until  the  office  was  abolished  in  1813.  In  1819 
the  office  was  revived,  and  in  that  year  John  II.  Clifford 
was  appointed  and  succeeded  by  Rufus  Choate  Jan- 
uary 22, 1853,  and  John  H.  Clifford  again  May  20,  1854. 
By  the  17th  Article  of  Amendments  to  the  Constitution 
adopted  by  the  General  Court  during  the  sessions  of 
1851  and  1855,  and  ratified  by  the  people  May  23, 1855, 
the  office  of  Attorney  General  was  made  elective,  and 
in  1858  Stephen  Henry  Phillips  was  chosen,  succeeded 
by  Dwight  Foster  in  1861,  Chester  I.  Reed  in  1861, 
Charles  Allen  in  1867,  Charles  R.  Train  in  1872,  George 
Marston  in  1879,  Edgar  J.  Sherman  in  1S83,  Andrew 
J.  Waterman  in  1887,  Albert  E.  Pillsbury  in  1891,  and 
Hosea  M.  Know! ton,  the  present  incumbent,  in  1893. 

When  the  office  was  abolished  in  1813  by  chapter  186 
of  the  Laws  of  1813,  the  Act  provided  that  the  Common- 
wealth's Attorney  for  the  county  of  Suffolk  should  have 
charge  of  capital  trials  in  that  county,  and  the  District 
Attorneys  of  those  in  their  respective  districts,  while 
the  Commonwealth's  Attorney  should  have  charge  of 
business  in  which  the  State  had  an  interest. 

Robert  Treat  Paine,  the  first  Attorney  General  under 
the  Constitution,  has  been  noticed  as  a  Judge  of  the 
Supreme  Judicial  Court. 

James  Sullivan  has  been  noticed  as  a  Judge  of  the 
Superior  Court  of  Judicature. 

Barnabas  Bidwell  was  a  Stockbridge  man  and  was 


OF  MASSACHUSETTS. 


287 


admitted  to  the  Berkshire  bar  in  1790.  He  was  County 
Treasurer  in  1791,  Senator  from  1S01  to  1804  and  mem- 
ber of  Congress  from  1803  to  1806.  He  was  appointed 
Attorney  General  in  1807  and  resigned  August  30, 1810. 
He  died  in  Kingston,  Canada,  July  27,  1833. 

Perez  Morton,  son  of  Joseph  and  Amiah  (Bullock) 
Morton,  was  born  in  Plymouth  October  22,  1750,  and 
graduated  at  Harvard  in  1771.  He  was  an  attorney  of 
Suffolk  county  in  1779,  and  a  Barrister  in  1786.  He 
was  appointed  Attorney  General  September  7, 1S10,  and 
held  office  until  May  24,  1S32.    He  died  in  1837. 

James  Trecothick  Austin,  son  of  Jonathan  Loring 
and  Hannah  (I vers)  Austin,  was  born  in  Boston  Janu- 
ary 10,  1784,  and  graduated  at  Harvard  in  1802.  He 
studied  law  with  William  Sullivan  and  was  admitted 
to  the  Suffolk  bar  in  July,  1805.  In  1807  he  was  ap- 
pointed Attorney  for  the  State  in  Suffolk  county  and 
in  1809  Town  Advocate.  In  1816  he  was  appointed  by 
Madison  to  manage  the  business  under  the  41st  article 
of  the  treaty  of  Ghent  and  in  1825-26  and  1831  he  was 
a  member  of  the  Senate.  He  was  appointed  Attorney 
General  in  1832  and  served  until  that  office  was  abol- 
ished in  1843.  In  1831  he  delivered  the  Phi  Beta  ora- 
tion at  Harvard  and  in  1835  received  the  degree  of 
LL.  D.  from  his  alma  mater.  He  married,  October  2, 
1806,  Catharine,  daughter  of  Elbridge  Gerry,  and  died 
in  Boston,  May  8,  1870. 

John  Henry  Clifford  was  born  in  Providence,  Janu- 
ary 16,  1809,  and  graduated  at  Brown  in  1827.  He 
studied  law  with  Theron  Metcalf  in  Dedham  and  after 
admission  to  the  bar  settled  in  New  Bedford.  In  1839 
he  was  a  Kepresentative  and  in  1849  was  appointed  to 
the  office  of  Attorney  General  which  was  revived  in 
that  year.  While  in  office  he  was  prosecuting  officer 
in  the  capital  trial  of  John  W.  Webster  and  in  1852 


288 


JUDICIAL  HISTORY 


was  chosen  Governor,  serving  one  year.  In  1854  he 
was  again  appointed  Attorney  General  and  served  until 
1858  when  the  office  became  elective.  In  1862  he  was 
President  of  the  Senate  and  was  for  several  years  Presi- 
dent of  the  Board  of  Overseers  of  Harvard  University, 
from  which  institution  he  received  the  degree  of  LL.  D. 
in  1853.  He  received  the  same  degree  from  Brown  in 
1S49  and  Amherst  in  1853.  He  married  a  daughter  of 
William  H.  Allen  of  New  Bedford  and  died  January  2, 
1876. 

Bufus  Choate,  son  of  David  and  Miriam  (Foster) 
Choate,  was  born  in  the  town  of  Essex,  Mass.,  Octo- 
ber 1,  1799,  and  graduated  at  Dartmouth  in  1819.  He 
studied  law  at  the  Harvard  Law  School  and  in  the  of- 
fice of  William  Wirt  in  Washington,  and  was  admitted 
to  the  Essex  bar  in  Salem  in  1823  and  began  practice 
in  Danvers.  In  1828  he  removed  to  Salem.  While  in 
Dan  vers  he  was  a  Representative  in  1825  and  Senator 
in  1827.  From  1831  to  1831  he  was  a  member  of 
Congress  and  in  the  latter  year  removed  to  Boston.  In 
1841  he  succeeded  Daniel  Webster  in  the  United  States 
Senate  and  served  while  Mr.  Webster,  who  had  left 
the  Senate,  acted  as  Secretary  of  State  under  Har- 
rison. In  1845,  Mr.  Webster  returned  to  the  Sen- 
ate and  Mr.  Choate  resumed  practice  in  Boston.  In 
1850  he  visited  Europe  and  in  1853  accepted  the  post 
of  Attorney  General,  resigning  in  1854.  In  1853  he 
was  a  member  of  the  State  Constitutional  Convention 
and  in  1858  in  consequence  of  ill  health  abandoned  pro- 
fessional labor.  In  1859  he  started  for  Europe  but  was 
obliged  to  leave  the  steamer  at  Halifax  and  died  in 
that  city  July  13,  1859.  He  married  March  29,  1825, 
Helen,  daughter  of  Mills  Olcutt,  of  Hanover,  N.  H. 

Stephen  Henry  Phillips,  son  of  Stephen  C.  and  Jane 
(Appleton)  Phillips,  was  born  in  Salem  August  16, 1823, 


OF  MASSACHUSETTS. 


289 


and  graduated  at  Harvard  in  1842.  He  graduated  at 
the  Harvard  Law  School  in  1844  and  was  admitted  to 
the  Suffolk  bar  February  6,  1846.  He  was  District 
Attorney  of  Essex  from  1851  to  1853,  and  Attorney 
General  elective  from  1858  to  1861.  In  1866  he  went 
to  Honolulu  and  was  Attorney  General  of  the  Hawaiian 
Islands  from  1866  to  1873  and  Minister  of  Foreign 
Affairs.  On  his  return  he  practiced  for  a  time  in  San 
Francisco  and  afterwards  in  Boston  and  Salem.  He 
married,  October  3,  1871,  Margaret,  daughter  of  James 
H.  and  Mary  (Willis)  Duncan,  of  Haverhill,  and  died 
in  Salem,  April  8,  1897. 

D  wight  Foster,  was  born  in  Worcester,  in  1828,  and 
graduated  at  Yale  in  1848.  He  was  admitted  to  the 
Worcester  bar  in  1849  and  practiced  in  Worcester  and 
Boston.  He  was  Attorney  General  from  1861  to  1864 
and  Judge  of  the  Supreme  Judicial  Court  from  1866 
until  his  resignation  in  1869.    He  died  in  18S4. 

Chester  Isham  Heed  has  been  noticed  as  a  Judge  of  the 
Superior  Court. 

Charles  Allen  has  been  noticed  as  a  Judge  of  the  Su- 
preme Judicial  Court. 

Charles  Russell  Train,  son  of  Rev.  Charles  and  Hep- 
sibah  (Harrington)  Train,  was  born  in  Framingham, 
Mass.,  October  18,  1817,  and  graduated  at  Brown  in 
1837.  He  read  law  in  Cambridge  and  was  admitted 
to  the  Suffolk  bar  in  1841.  He  settled  in  Framingham, 
was  Representative  in  1847,  member  of  the  Constitu- 
tional Convention  in  1853,  District  Attorney  from  184S 
to  1855,  Councillor  in  1857-8,  and  member  of  Congress 
from  1859  to  1863.  About  the  close  of  the  war,  he  re- 
moved to  Boston,  was  a  Representative  again  in  1871 
and  Attorney  General  from  IS 72  to  1879.  He  died  at 
North  Conway,  JST.  H.,  July  29,  1885. 

George  Marston,  son  of  Charles  and  Nancy  C.  (Good- 
19 


290 


JUDICIAL  HISTORY 


speed)  Marston,  was  born  in  Marston's  Mills,  Barnstable, 
October  15,  1821,  and  studied  law  with  his  uncle, 
Nymphas  Marston,  and  after  spending  one  or  more 
terms  at  the  Harvard  Law  School  was  admitted  to  the 
Barnstable  County  bar  in  September,  1845.  He  estab- 
lished himself  in  Barnstable  where  he  remained  until 
1869,  when  he  removed  to  New  Bedford.  In  1853  he 
was  appointed  Kegister  of  Probate,  and  in  1854,  Judge 
of  Probate,  serving  until  1858.  From  1859  to  1878  he 
was  District  Attorney,  and  in  the  latter  year  was  chosen 
Attorney  General,  remaining  in  office  until  1883,  the 
year  he  died.  He  married  Elizabeth  Weston,  daughter 
of  Oliver  C.  Swift  of  Falmouth,  Mass.,  and  died  in  New 
Bedford,  August  14,  1883. 

Edgar  Ja}r  Sherman  has  been  noticed  as  a  Judge  of 
the  Superior  Court. 

Andrew  J.  Waterman,  son  of  William  and  Sarah 
(Bucklin)  Waterman,  was  born  in  North  Adams,  Mass., 
June  23,  1825,  and  after  studying  law  in  the  offices  of 
Keyes  Danforth  and  Daniel  N.  Dewey,  in  Williams- 
town,  was  admitted  to  the  Berkshire  bar,  March  18, 
1854.  In  1855,  he  was  appointed  Kegister  of  Probate, 
and  in  1858,  was  chosen  Register  of  Probate  and  Insol- 
vency, serving  until  1880,  when  he  was  appointed  Dis- 
trict Attorney  to  fill  a  vacancy.  He  was  afterwards 
annually  chosen  to  the  latter  office  until  his  resignation 
in  1887,  when  he  was  chosen  Attorney  General,  and 
served  three  years.  He  married  Ellen  Douglas,  daughter 
of  Henr3r  H.  and  Nancy  (Comstock)  Cooke,  at  East  Bos- 
ton, January  7,  1858. 

Albert  E.  Pillsbury,  son  of  Josiah  Webster  and  Eliza- 
beth (Dinsmoor)  Pillsbury,  was  born  in  Milford,  N.  H., 
August  19,  1849,  and  entered  at  Harvard  in  1867,  leav- 
ing in  his  Sophomore  year  to  go  to  Sterling,  111.,  where 
he  studied  law  in  the  office  of  his  uncle,  James  Dins- 


OF  MASSACHUSETTS. 


291 


moor,  an  eminent  lawyer  of  that  town.  In  1870,  he 
came  to  Boston,  and  was  admitted  to  the  Suffolk  bar  in 
June  of  that  year.  He  was  a  Representative  in  1876-77 
and  '78,  and  Senator  in  1881-85  and  '86,  the  last  two 
years  President  of  the  Senate.  In  1S88  he  was  offered  a 
seat  on  the  bench  of  the  Superior  Court,  and  in  1889, 
the  position  of  Corporation  Counsel  of  the  city  of  Boston. 
In  1890  he  was  chosen  Attorney  General,  and  served 
three  years.  It  is  a  commentary  on  the  present  un- 
satisfactory condition  of  political  parties  that  only  the 
honest  workings  of  his  mind  leading  him  to  honest  con- 
victions have  thus  far  obstructed  his  path  to  higher 
honors.  He  married  at  Newbury,  Yt.,  July  9,  1889, 
Louise  F.  (Johnson)  Wheeler,  daughter  of  Edward  C. 
and  Delia  M.  (Smith)  Johnson. 

Hosea  M.  Knowlton  was  born  in  Durham,  Maine, 
May  20,  1S17,  and  graduated  at  Tufts  College  in 
1867.  He  studied  law  at  the  Harvard  Law  School 
and  in  the  office  of  Edward  L.  Barney  of  New  Bedford, 
and  was  admitted  to  the  bar  in  June,  1870.  Practicing 
first  in  Boston,  he  removed  in  1872  to  New  Bedford 
and  was  a  partner  of  Mr.  Barney  until  1879,  when  he 
became  associated  with  Arthur  E.  Perry.  He  was  a 
Eepresentative  in  1876,  and  Senator  in  1878  and  1879. 
In  the  latter  year  he  was  appointed  District  Attorney 
to  fill  a  vacancy  occasioned  by  the  resignation  of  George 
Marston,  who  had  been  chosen  Attorney  General.  In 
1893  he  was  chosen  Attorney  General,  and  is  still  in 
office. 

It  is  not  proposed  to  include  in  this  narrative  sketches 
of  the  United  States  Courts  within  the  Commonwealth, 
as  they  are  beyond  the  scope  of  a  Judicial  History  of 
Massachusetts.  ISTor  is  it  the  intention  of  the  writer  to 
follow  the  currents  of  those  minor  courts  which  at  vari- 
ous times,  either  in  the  hands  of  Justices  of  the  Peace  or 


292 


JUDICIAL  HISTORY 


Trial  Justices  or  District  Courts,  have  administered 
justice  at  the  threshold  of  our  judicial  system.  These 
District  Courts,  with  their  congeners,  the  Police  and 
Municipal  Courts,  in  the  several  Districts  and  the  cities 
and  larger  towns,  as  they  exist  to-day,  may  all  be  found 
in  the  Manual  of  the  General  Court.  It  may,  however, 
be  well  to  add  that  on  the  27th  of  March,  1858,  an  Act 
was  passed  providing  for  the  appointment  b}^  the  Gov- 
ernor of  "  a  suitable  number  of  Justices  of  the  Peace  as. 
Trial  Justices"  not  exceeding  the  number  in  each 
county  specified  in  the  Act  with  a  Jurisdiction  described 
in  the  Act,  and  that  in  the  various  Acts  establishing 
District  Courts  the  Trial  Justices  within  the  Court  Dis- 
tricts lost  their  jurisdiction. 

Though  not  strictly  germane  to  our  narrative,  a  few 
closing  words  concerning  the  Massachusetts  bar  during 
the  colonial  and  provincial  days  and  the  days  of  the 
Commonwealth  may  not  be  inappropriate.  It  has  been 
stated  that  the  Act  establishing  the  Supreme  Judicial 
Court,  passed  July  3,  1782,  gave  the  Court  authority  to 
regulate  the  admission  of  attorneys  and  the  creation  of 
barristers  at  law.  A  law  passed  November  4,  1705, 
prescribing  the  oath  to  be  taken  by  attorneys,  appears 
to  have  furnished  for  many  years  the  only  necessary 
regulation.  There  was  practically  no  bar  during  the 
colonial  period.  It  is  possible  that  John  Winthrop, 
Richard  Bellingham,  John  Humphrey,  Herbert  Pel- 
ham,  Simon  Bradstreet  and  Thomas  Lechford  were  edu- 
cated in  the  law,  but  Pelham  and  Lechford  returned  to 
England  after  a  few  years'  residence  in  Massachusetts. 
The  skill  with  which  the  colony  laws  were  drafted  in- 
dicates something  more  than  the  ordinary  learning  of 
men  engaged  in  commercial  pursuits.  The  real  prac- 
titioners in  the  courts  in  the  colonial  days  were  not 
lawyers.    They  were  such  men  as  John  West,  a  crea- 


OF  MASSACHUSETTS. 


293 


ture  of  Andros,  George  Far  well,  another  creature  of 
Andros,  both  of  whom  came  from  New  York  ;  John 
Coggan,  a  merchant ;  Amos  Richardson,  a  tailor ;  John 
Watson,  a  merchant,  and  Benjamin  Bullivant,  an  apoth- 
ecar}>-.  In  fact,  the  business  of  practicing  in  the  courts 
was  looked  upon  with  such  disfavor  that  a  law  was 
passed  by  the  Massachusetts  Colony  General  Court 
in  1662  excluding  every  one  "  who  was  a  usual  and 
common  attorney  in  an  Inferior  Court  from  a  seat 
in  the  House  of  Deputies."  Edward  Randolph,  Secre- 
tary of  the  Massachusetts  Colony  under  President  Dud- 
ley, wrote  home  to  England  in  January,  1687-8,  "  I 
have  wrote  you  of  the  want  we  have  of  two  or  three 
honest  attornej^s  (if  any  such  thing  in  nature).  We  have 
but  two  ;  one  is  West's  creature  —  came  with  him  from 
New  York  and  drives  all  before  him.  He  also  takes 
extravagant  fees,  and  for  want  of  more  the  country 
cannot  avoid  coming  to  him,  so  that  we  had  better  be 
quite  without  them  than  not  to  have  more." 

It  was  largely  the  custom  for  parties  to  manage  their 
own  suits,  and  litigation  became  so  easy,  and  trials  so 
tedious,  that  the  General  Court  in  1656  ordered  "that 
Avhen  any  plaintiff  or  defendant  shall  plead  by  himself 
or  his  attorney  for  a  longer  time  than  one  hour,  the 
party  that  is  sentenced  or  condemned  shall  pay  twenty 
shillings  for  every  hour  so  pleading  more  than  the  com- 
mon fees  appointed  by  the  Court  for  the  entrance  of 
action  to  be  added  to  the  execution  for  the  use  of  the 
country." 

Under  Andros  the  courts  were  authorized  to  make 
rules  for  the  regulation  of  court  proceedings,  and  a 
table  of  court  fees  was  established,  a  copy  of  which, 
taken  from  Washburn's  Judicial  History,  is  as  follows : 

For  Commissioners  of  small  causes,  attachments  or  sum- 
mons, Is. 


294 


JUDICIAL  HISTORY 


Subpoena  for  witnesses,  3c?. 
Entry,  3s.  Ad. 

Filing  papers,  each  paper,  2d. 
Judgment,  6d. 
Confessing  judgment,  Is. 
Execution,  2s. 

Marshal's  fees  on  every  verdict,  Is. 

Each  Justice  per  diem  paid  out  of  the  fines,  os. 

In  civil  actions,  entry,  5s. 

Jury  on  verdict  not  less  than,  6s.  6d. 

Entering  and  approving  bonds,  2s. 

Superior  Court  jury,  verdict  not  less  than,  6s.  6d. 

Entry  of  action,  10s. 

Confessing  judgment,  2s. 

Additional  entry  fee  if  over  £20,  10s. 

Entry  of  judgment,  2s. 

Marshal's  fee  in  every  verdict,  Is. 

Governor  and  Council,  entry  of  appeals,  2s.  6d. 

Entry  of  Action,  £1. 

In  the  early  days  of  the  Province,  attorneys  were 
recognized  as  officers  of  the  court.  In  1708  a  law  was 
passed  prohibiting  parties  from  employing  more  than 
two  attorneys  and  no  attorney  was  permitted  to  refuse 
his  services  provided  he  were  tendered  the  legal  fee. 
At  a  little  later  period  the  office  of  court  practitioner 
became  more  respected  when  it  began  to  be  occupied  by 
men  of  legal  education.  Men  thoroughly  instructed  in 
the  law  at  either  the  Inner  Temple,  Middle  Temple, 
Lincoln's  Inn  or  Gray's  Inn  began  to  migrate  to  New 
England  and  some  of  Massachusetts  nativity  like  Ben- 
jamin Lynde  were  sent  to  England  and  fitted  for  the 
profession  at  one  of  the  above  schools  of  law.  Ministers 
and  physicians  were  no  longer  called  to  the  bench  and 
men  like  Samuel  Sewall  whose  narrow  and  bitter  the- 
ology had  not  been  alleviated  by  the  broader  study  of 


OF  MASSACHUSETTS. 


295 


law  were  no  longer  wanted  in  positions  where  they 
might  repeat  that  lasting  disgrace  which  the  trials  for 
witchcraft  inflicted  on  New  England  and  which  time 
can  never  efface. 

Though  in  the  early  years  of  the  Province  regulations 
concerning  admission  to  the  bar  were  uncertain  and  im- 
perfect, so  far  as  Barristers  were  concerned  something 
like  the  custom  in  England  prevailed.  There  Barristers 
before  admission  to  plead  at  the  bar  must  have  resided 
three  years  in  one  of  the  Inns  of  Court  if  a  graduate  at 
Cambridge  or  Oxford,  and  five  years  if  not.  Those 
Inns  were  the  Inner  Temple,  the  Middle  Temple,  Lin- 
coln's Inn  and  Gray's  Inn.  In  Massachusetts  the  rule 
seems  to  have  required  a  practice  at  one  period  of  three, 
at  another  of  four  and  at  still  another  period  of  seven 
years  in  the  Inferior  Courts. 

Before  the  Act  was  passed  establishing  the  Supreme 
Judicial  Court  the  following  entry  was  made  in  the  rec- 
ords of  the  Superior  Court  of  Judicature  : 

"Suffolk  ss  :  Superior  Court  of  Judicature  at  Boston, 
third  Tuesday  of  February,  1781,  present  William  Cushing, 
Nathaniel  P.  Sargeant,  David  Sewall  and  James  Sullivan  ; 
and  now,  at  this  term  the  following  rule  is  made  by  the 
Court  and  ordered  to  be  entered,  viz  :  Whereas  learning  and 
literary  accomplishments  are  necessary  as  well  to  promote 
the  happiness  as  to  preserve  the  freedom  of  the  people,  and 
the  learuing  of  the  law  when  duly  encouraged  and  rightly 
directed,  being  as  well  peculiarly  subservient  to  the  great  and 
good  purpose  aforesaid,  as  promotive  of  public  and  private 
justice  ;  and  the  Court  being  at  all  times  ready  to  bestow 
peculiar  marks  of  approbation  upon  the  gentlemen  of  the  bar, 
who,  by  a  close  application  to  the  study  of  the  science  they 
profess,  by  a  mode  of  conduct  which  gives  a  conviction  of 
the  rectitude  of  their  minds,  and  a  fairness  of  practice  that 
does  honor  to  the  profession  of  the  law,  shall  distinguish 


296 


JUDICIAL  HISTORY 


themselves  as  men  of  science,  honor  and  integrity  :  Do  order 
that  no  gentleman  shall  be  called  to  the  degree  of  Barrister 
until  he  shall  merit  the  same,  by  his  conspicuous  bearing, 
ability  and  honesty  :  and  that  the  Court  will,  of  their  own 
mere  motion  call  to  the  bar  such  persons  as  shall  render 
themselves  worthy  as  aforesaid  :  and  that  the  manner  of 
calling  to  the  bar  shall  be  as  follows  :  The  gentleman  who 
shall  be  a  candidate  shall  stand  within  the  bar,  the  Chief 
Justice,  or  in  his  absence  the  Senior  Justice  shall  in  the  name 
of  the  Court  repeat  to  him  the  qualifications  necessary  for  a 
Barrister  at  Law ;  shall  let  him  know  that  it  is  a  conviction 
in  the  mind  of  the  Court  of  his  being  possessed  of  these 
qualifications  that  induces  them  to  confer  the  honor  upon 
him  ;  and  shall  solemnly  charge  him  so  to  conduct  himself 
as  to  be  of  singular  service  to  his  country  by  exerting  his 
abilities  for  the  defence  of  her  constitutional  freedom  ;  and 
so  to  demean  himself  as  to  do  honor  to  the  Court  and  bar." 

The  Supreme  Judicial  Court  made  the  following  entry 
in  its  records : 

"Suffolk,  ss :  At  the  Supreme  Judicial  Court  at  Boston 
the  last  Tuesday  of  August,  1783,  present,  William  Cushing, 
Chief  Justice,  and  Nathaniel  P.  Sargent,  David  Sewall  and 
Jncrease  Sumner  Justices,  ordered  that  Barristers  be  called 
to  the  bar  by  special  writ  to  be  ordered  by  the  Court  and  to 
be  in  the  following  form  : 

"  'Commonwealth  of  Massachusetts. 

"  '  To  A.  B.  Esq.,  of  Greeting  :  We  well  knowing 

your  ability,  learning  and  integrity  command  you  that  you 
appear  before  our  Justices  of  our  Supreme  Judicial  Court 

next  to  be  holden  at  in  and  for  our  county  of  

on  the  Tuesday  of  then  and  there  in  our  said 

Court  to  take  upon  you  the  state  and  degree  of  Barrister  at 

Law.     Hereof   fail  not.    Witness  Esq.,  our  Chief 

Justice  at  Boston  the  day  of  in  the  year  of 

our  Independence  .    By  order  of  the  Court. 

"<  Clerk.' 


OF  MASSACHUSETTS. 


297 


"  Which  writ  shall  be  fairly  engrossed  on  parchment  rind 
delivered  twenty  days  before  the  session  of  the  same  Court 
by  the  Sheriff  of  the  same  county  to  the  person  to  whom  di- 
rected and  being  produced  in  Court  by  the  Barrister  and 
there  read  by  the  Clerk,  and  proper  certificate  thereon  made 
shall  be  redelivered  and  kept  as  a  voucher  of  his  being  legally 
called  to  the  bar,  and  the  Barristers  shall  take  rank  accord- 
ing to  the  date  of  their  respective  writs." 

In  1836  the  distinction  between  Attorney  and  Coun- 
sellor was  abolished.  The  question  may  well  be  asked 
whether  a  return  to  the  old  formalities  and  require- 
ments may  not  become  necessary  to  purify  and  ele- 
vate the  bar.  A  period  of  probation  before  an  Attor- 
ney could  enter  the  higher  rank  of  the  profession  like 
that  of  Counsellor  or  Barrister  would  serve  to  promote 
study,  industry  and  honorable  practice  and  check  the 
pettifogging  spirit  which  the  flood  of  admissions,  es- 
pecially in  Suffolk  County,  has  tended  to  increase. 

It  is  known  that  in  1768  there  were  twenty- five  Barris- 
ters in  Massachusetts  but  how  early  the  order  of  Barris- 
ter existed  in  the  State,  the  writer  is  unable  to  say.  Of 
the  twenty-five,  eleven  were  in  Suffolk  County,  Richard 
Dana,  Benjamin  Kent,  James  Otis,  Jr.,  Samuel  Fitch, 
"William  Read,  Samuel  Swift,  Benjamin  Gridley,  Sam- 
uel Quincy,  Robert  Auchmuty,  and  Andrew  Cazneau, 
of  Boston,  and  Jonathan  Adams,  of  Braintree ;  five 
were  in  Essex,  Daniel  Farnham  and  John  Lowell,  of 
Newburyport ;  William  Pynchon,  of  Salem;  John 
Chipman,  of  Marblehead,  and  Nathaniel  Peaslee  Sar- 
gent, of  Haverhill ;  one  was  in  Middlesex,  Jonathan 
Sewall;  two  were  in  Worcester,  James  Putnam,  of 
Worcester,  and  Abel  Willard,  of  Lancaster ;  three  were 
in  Bristol,  Samuel  White  and  Robert  Treat  Paine,  of 
Taunton,  and  Daniel  Leonard,  of  Norton  ;  two  were  in 
Plymouth,  James  Hovey  and  Pelham  Winslow,  of  Ply- 


298 


JUDICIAL  HISTORY 


mouth,  and  one  in  Hampshire,  John  "Worthington,  of 
Springfield.  After  that  date  the  following  Barristers 
were  called :  Joseph  Hawley  and  Caleb  Strong,  of 
Northampton;  David  Sewall,  of  York,  then  a  part  of 
Massachusetts ;  Moses  Bliss  and  Jonathan  Bliss,  of 
Springfield ;  Zephaniah  Leonard,  of  Taunton ;  Theophilus 
Bradbury  and  David  Weyer,  of  Falmouth  (Portland 
then  a  part  of  Massachusetts),  Mark  Hopkins,  of  Great 
Barrington ;  Simeon  Strong,  of  Amherst ;  John  Sulli- 
van, of  Durham  ;  Daniel  Oliver,  of  Hard  wick  ;  Francis 
Dana,  of  Cambridge ;  Samuel  Salter  Blowers,  Benja- 
min Hichborn,  William  Tudor,  Perez  Morton,  William 
Wetmore  and  John  Gardiner,  of  Boston ;  Daniel  Bliss, 
of  Concord ;  Samuel  Porter,  of  Salem  ;  Joshua  Upham, 
of  Brook  field ;  Shearjashub  Bourne,  of  Barnstable ;  James 
Sullivan,  of  Biddeford;  Jeremiah  D.  Rogers,  of  Littleton ; 
Oakes  Angier,  of  Bridgewater ;  John  Sprague,  of  Lan- 
caster; Elisha  Porter,  of  Hadley;  Theodore  Sedgwick, 
of  Sheffield ;  Theophilus  Parsons,  of  Newburyport  and 
Levi  Lincoln,  of  Worcester.  The  above,  numbering  fifty- 
six,  are  believed  to  be  all  ever  called  to  the  bar  in  Massa- 
chusetts. As  they  may  be  considered  the  leaders  of 
the  bar  in  their  time,  short  sketches  will  be  included  in 
this  narrative  of  such  as  have  left  any  available  record. 

Richard  Dana,  son  of  Daniel,  and  grandson  of  Rich- 
ard, the  ancestor,  who  settled  in  Cambridge  in  1640, 
was  born  in  Cambridge,  July  7,  1699,  and  died  in  Cam- 
bridge, May  17,  1772.  He  graduated  at  Harvard  in 
1718  and  after  practicing  law  for  a  time  in  Marblehead, 
continued  it  in  Charlestown  and  Boston.  He  married 
a  sister  of  Judge  Edmund  Trowbridge,  and  he  wras  father 
of  Judge  Francis  Dana  and  grandfather  of  Richard  H. 
Dana,  the  poet. 

Benjamin  Kent  was  born  in  Charlestown,  and  gradu- 
ated at  Harvard  in  1727.    He  studied  divinity,  and  in 


OF  MASSACHUSETTS. 


299 


1733  was  settled  over  a  parish  in  Marlboro  where  he 
remained  two  years.  He  next  studied  law  and  became 
a  Barrister.  Being  a  Loyalist  he  retired  to  Halifax  at 
the  Kevolution  and  there  died  in  1788. 

James  Otis,  Jr.,  the  patriot  so-called,  has  been  already 
noticed  as  Advocate  General  of  Admiralty. 

Samuel  Fitch  was  an  addresser  of  Hutchinson  in  1774, 
Advocate  General  of  Admiralty  and  Solicitor  to  the 
Board  of  Commissioners.  He  went  to  Halifax  in  1776 
and  in  1778  was  proscribed  and  banished.  He  went  to 
England  and  in  1779  was  a  Loyalist  addresser  to  the 
King.  He  graduated  at  Yale  in  1742,  received  an  hon- 
orary degree  of  Master  of  Arts  from  Harvard  in  1766, 
and  died  probably  in  England  in  1781. 

William  Reed  has  already  been  noticed  as  Judge  of 
Admiralty. 

Samuel  Swift  graduated  at  Harvard  in  1735,  and  died 
in  1775. 

Benjamin  Gridley  has  already  been  noticed  as  Judge 
of  the  Inferior  Court  of  Common  Pleas,  for  Suffolk 
Count}^. 

Samuel  Quincy  has  already  been  noticed  as  Solicitor 
General  of  the  Province. 

Robert  Auchmuty  has  been  noticed  as  Judge  of 
Admiralty. 

Andrew  Cazneau  was  an  educated  lawyer.  At  the 
Revolution  he  went  to  England  in  1775  and  afterwards 
to  Bermuda,  where  he  held  office  under  the  crown.  He 
was  proscribed  in  1778  but  returned  to  Boston  in  1788, 
and  died  in  Roxbury  in  1792.  He  married,  in  1769, 
Hannah,  daughter  of  John  Hammock,  a  Boston  mer- 
chant. 

Jonathan  Adams  has  left  no  record  known  to  the 
writer. 

Daniel  Farnham,  son  of  Daniel,  a  native  of  Andover, 


300 


JUDICIAL  HISTORY 


Mass.,  was  born  in  York,  Maine,  in  1719,  and  graduated 
at  Harvard  in  1739.  He  studied  law  in  the  office  of 
Edmund  Trowbridge  of  Cambridge,  and  was  admitted 
to  the  Essex  bar.  He  settled  in  Newbury  port  and  con- 
tinued in  practice  until  the  Revolution.  He  adhered  to 
the  crown  but  remained  at  his  home.  He  married,  in 
July,  1740,  Sybil,  daughter  of  Rev.  Samuel  Angier  of 
Watertown,  and  granddaughter  of  Uriah  Oakes,  the 
fourth  President  of  Harvard  College,  and  died  in  1776. 

John  Lowell,  son  of  Rev.  John  Lowell,  was  born  in 
Newbury,  Mass.,  June  17,  1743,  and  graduated  at  Har- 
vard in  1760.  He  studied  law  with  Oxenbridge  Thacher 
and  was  admitted  to  the  bar  in  1762.  He  began  prac- 
tice in  Newbury  port  but  removed  to  Boston  in  1777. 
In  1776  he  was  a  Representative  from  Newburyport  and 
in  1778  from  Boston.  He  was  a  delegate  to  the  State 
Constitutional  Convention  in  1780,  member  of  Congress 
in  1783,  Judge  of  the  Court  of  Appeals  from  1783  to 
1789,  Judge  of  the  United  States  District  Court  for 
Massachusetts  from  1789  to  1801,  Chief  Justice  of  the 
Circuit  Court  for  Maine,  Massachusetts,  New  Hampshire 
and  Rhode  Island  from  1801  until  the  law  creating  the 
Court  was  repealed  in  1802.  He  died  in  Roxbury, 
May  6,  1802.  He  received  the  degree  of  LL.  D.  from 
Harvard  in  1792. 

William  Pynchon  was  born  in  Springfield,  Mass.,  in 
1725,  and  graduated  at  Harvard  in  1743.  In  1745  he 
entered  the  office  of  Stephen  Sewall  of  Salem  as  stu- 
dent of  law  and  was  admitted  to  the  Essex  bar.  He 
died  in  Salem  in  March,  1789. 

John  Chipman,  son  of  Rev.  John  Chipman  of  Marble- 
head,  graduated  at  Harvard  in  1738  and  died  in  Fal- 
mouth, now  Portland,  in  July,  1768. 

Nathaniel  Pearslee  Sargeant  has  been  noticed  as 
Judge  of  the  Superior  Court  of  Judicature. 


OF  MASSACHUSETTS. 


301 


Jonathan  Sewall  has  been  noticed  as  Attorney  Gen- 
eral of  Massachusetts. 

James  Putnam  was  born  in  Danvers,  Mass.,  in  1725r 
and  graduated  at  Harvard  in  1746.  He  studied  law 
with  Edmund  Trowbridge  of  Cambridge  and  settled  in 
Worcester,  practicing  also  in  Suffolk  County.  He  went 
to  England  in  1776  and  in  1778  was  proscribed  and 
banished.  In  1781  he  was  appointed  Judge  of  the  Su- 
preme Court  of  'New  Brunswick  and  died  at  St.  John, 
in  1789. 

Abel  Willard  was  born  in  Lancaster,  Mass.,  in  Jan- 
uary, 1732,  and  graduated  at  Harvard  in  1752.  He 
studied  law  in  Boston  with  Benjamin  Pratt,  and  was 
admitted  to  the  bar  in  1755.  He  practiced  in  Lan- 
caster until  the  Revolution,  when  he  removed  to  Boston. 
In  1776  he  retired  to  Halifax,  and  in  1778  was  pro- 
scribed and  banished.  He  married  Eliza,  daughter  of 
Rev.  Daniel  Rogers,  and  died  in  England  in  1781. 

Samuel  White,  son  of  Samuel  and  Ann  (Bingley) 
White,  was  born  in  Weymouth,  Mass.,  April  2,  1710, 
and  graduated  at  Harvard  in  1731.  He  studied  law 
while  in  service  as  Deputy  Sheriff,  and  after  admission 
to  the  bar  settled  in  Taunton  in  1739.  In  1716,  the 
year  Taunton  became  the  shire  of  Bristol  County,  to 
succeed  the  town  of  Bristol,  which  had  been  declared 
by  a  Royal  Commission  to  belong  to  Rhode  Island,  he 
was  appointed  King's  Attorney  and  held  that  office  until 
his  death.  He  was  a  Representative  from  Taunton  from 
1749  to  1753,  and  from  1756  to  1759,  and  in  1764  and 
1765,  serving  as  Speaker  of  the  House  of  Representatives 
in  1750-1764  and  1765.  He  was  also  a  member  of  the 
Council  from  1767  to  1769.  He  married,  in  November, 
1735,  Prudence,  daughter  of  Samuel  Williams  of  Taun- 
ton, and  died  March  20,  1769. 

Robert  Treat  Paine  has  been  noticed  as  an  appointed 


302 


JUDICIAL  HISTORY 


Judge  of  the  Superior  Court  of  Judicature,  au  office 
which  he  declined. 

Daniel  Leonard  graduated  at  Harvard  in  1760.  He 
moved  from  Norton  to  Boston  and  is  mentioned  as 
present  at  a  meeting  of  the  Suffolk  bar  January  3, 1770, 
at  the  Bunch  of  Grapes  tavern  on  the  corner  of  State 
and  Kilby  streets,  to  form  a  bar  association.  He  died 
in  1829. 

James  Hovey,  son  of  Ivory  Hovey,  was  born  in  Ips- 
wich, Mass.,  in  1709,  and  was  practicing  in  Plymouth 
before  1735.  He  married,  first,  in  1735,  Lydia,  daughter 
of  John  Atwood,  second,  in  1771,  Mary  Harlow,  and 
third,  in  1774,  Margarett  Connell.  He  died  in  Plym- 
outh in  1781. 

Pelham  Winslow,  son  of  General  John  and  Mary 
(Little)  Winslow,  and  great-great-grandson  of  Governor 
Edward  Winslow,  of  Plymouth,  was  born  in  Plymouth 
in  1737,  and  graduated  at  Harvard  in  1753.  Being  a 
Loyalist  he  joined  the  British  Army  in  1776  and  died 
in  the  service  on  Long  Island  in  1783.  He  married, 
Joanna,  daughter  of  Gideon  White  of  Plymouth. 

John  Worthington  was  born  in  Springfield,  Mass., 
November  24,  1719,  and  graduated  at  Yale  in  1740. 
He  was  a  tutor  at  Yale,  and  after  studying  law  with 
Phinehas  Lyman  in  Suffield,  began  practice  in  Spring- 
field in  1744.    He  died  in  April,  1800. 

John  Gardiner,  was  son  of  Dr.  Sylvester  Gardiner, 
and  was  born  in  Boston  in  1731.  He  studied  law  at 
the  Inner  Temple^  London,  and  in  June,  1761,  was  ad- 
mitted to  practice  in  Westminster  Hall.  After  a  short 
practice  in  England  he  was  appointed  Attorney  General 
at  the  Island  of  St.  Christopher  and  removed  there. 
After  the  Revolution  he  came  to  Boston  where  he  was 
recognized  as  a  citizen  by  a  special  act  passed  Febru- 
ary 13,  1784.    He  afterwards  removed  to  Pownalboro, 


OF  MASSACHUSETTS. 


303 


Maine,  and  was  drowned  off  Cape  Ann,  October  15, 
1793.  He  received  a  degree  of  Master  of  Arts  from  the 
University  of  Glasgow  in  1755,  and  from  Harvard  in 
1791.  He  married,  Margaret  Harris,  of  Haverford, 
Wales. 

Joseph  Hawley,  grandson  of  Judge  Joseph  Hawley  of 
the  Inferior  Court  of  Common  Pleas  for  Hampshire 
County,  was  born  in  Northampton,  Mass.,  in  1721,  and 
graduated  at  Yale  in  1712.  He  studied  theology  and 
served  in  1715  as  Chaplain  in  the  expedition  against 
Louisburg.  He  afterwards  studied  law  with  General 
Lyman  of  Suffield,  Mass.,  and  began  practice  in  North- 
ampton in  1719.  He  was  Representative  from  1761  to 
1776,  and  a  member  of  Provincial  Congress  in  1771  and 
1775.    He  died  March  10,  1788. 

David  Sewall  has  been  noticed  as  a  Judge  of  the 
Superior  Court  of  Judicature. 

Moses  Bliss  graduated  at  Yale  in  1755.  He  studied 
divinity,  but  after  preaching  a  short  time  studied  law, 
and  was  admitted  to  the  bar  in  1761,  practicing  at  the 
Hampshire  bar. 

Zephaniah  Leonard  graduated  at  Yale  in  1758,  and 
received  an  honorary  degree  of  Master  of  Arts  from 
Harvard  in  1763,  and  from  Brown  in  1793.  He  was  at 
one  time  High  Sheriff  of  Bristol  County  and  died  in 
1811. 

Theophilus  Bradbury  was  born  in  Newbury,  Mass., 
November  13, 1739,  and  graduated  at  Harvard  in  1757. 
He  first  taught  school,  and  after  studying  law  settled 
in  Falmouth,  now  Portland,  remaining  there  until  1779, 
when  he  returned  to  Newbury.  He  was  a  Representa- 
tive and  State  Senator,  and  also  a  member  of  Congress 
from  1795  to  1797.  He  was  appointed  Judge  of  the 
Supreme  Judicial  Court  in  1797  and  held  that  office 
until  1803.    He  died  September  6,  1803. 


304 


JUDICIAL  HISTORY 


David  Weyer  of  Portland  has  no  record  accessible  to 
the  author. 

Mark  Hopkins,  son  of  Timothy  Hopkins,  was  born  in 
Waterbury,  Conn.,  in  1739,  and  graduated  at  Yale  in 
1758.  He  was  admitted  to  the  bar  in  Hampshire 
County,  when  that  county  included  what  is  now  Berk- 
shire County,  and  settled  in  Great  Barrington.  At  the 
time  of  the  incorporation  of  Berkshire  County,  April  21, 
1761,  there  were  only  six  lawyers  within  its  limits,  John 
Huggins,  Elisha  Huggins,  John  Ashley,  Theodore  Sedg- 
wick and  Mr.  Hopkins.  He  died  at  White  Plains  while 
serving  as  Colonel  in  the  Revolutionary  army,  Octo- 
ber 26,  1776. 

Simeon  Strong  was  born  in  Northampton,  Mass., 
March  6, 1736,  and  graduated  at  Yale  in  1756.  He  was 
admitted  to  the  bar  in  1761,  was  a  Representative  from 
1767  to  1769,  Senator  in  1793,  and  in  1801  was  appointed 
Judge  of  the  Supreme  Judicial  Court,  serving  until  his 
death  at  Amherst,  Mass.,  December  14,  1805. 

John  Sullivan  was  born  in  Berwick,  Maine,  Feb- 
ruary 17,  1740.  He  practiced  law  in  Durham,  N.  H., 
was  a  member  of  the  first  Congress  in  1774,  and  in 
1775  was  appointed  by  Congress  Brigadier  General, 
and  in  the  same  year  Major  General,  distinguishing 
himself  at  Trenton  and  in  the  battle  of  Brandywine. 
From  1782  to  1786  he  was  Attorney  General  of  New 
Hampshire,  and  from  1786  to  1789  President  of  the 
State.  In  1789  he  was  appointed  Federal  Judge  of 
New  Hampshire  and  held  that  office  until  his  death  at 
Durham,  January  23,  1795. 

Daniel  Oliver  was  born  in  Middleboro,  Mass.,  and 
graduated  at  Harvard  in  1762.  He  was  admitted  to 
the  bar  in  1781  and  settled  in  Hardwick.  He  died  in 
1826. 

Francis  Dana,  son  of  Richard,  was  born  in  Charles- 


OF  MASSACHUSETTS. 


305 


town,  Mass.,  January  13,  1743,  and  graduated  at  Har- 
vard in  1762.  He  studied  law  with  Edmund  Trow- 
bridge of  Cambridge  and  after  his  admission  to  the  bar 
in  1767  practiced  in  Boston.  He  was  a  delegate  to  the 
Provincial  Congress  in  1774,  and  in  1776  a  member  of 
the  Executive  Council.  He  was  a  delegate  to  the  Con- 
tinental Congress  in  1776  and  1778,  Secretary  to  John 
Adams,  who  was  appointed  in  1779  to  negotiate  peace, 
and  in  1781  was  appointed  Minister  to  St.  Petersburg, 
where  he  remained  two  years.  In  1781  he  was  again  a 
delegate  to  Congress,  and  January  18,  1785,  was  ap- 
pointed Judge  of  the  Supreme  Judicial  Court,  and  No- 
vember 29,  1791,  Chief  Justice.  He  retired  from  the 
bench  in  1806  and  died  in  Cambridge,  April  25,  1811. 

Sampson  Salter  Blowers  was  born  in  Boston, 
March  22,  1742,  and  graduated  at  Harvard  in  1763. 
He  studied  law  with  Thomas  Hutchinson  and  was 
associated  with  Adams  and  Quincy  in  the  defense  of 
Captain  Preston  in  1770.  He  was  a  Lo}ralist,  and  on 
his  return  in  1778  from  England,  where  he  had  gone  in 
1774,  he  found  his  name  on  the  proscription  list. 
After  a  short  imprisonment  he  retired  to  Halifax,  N.  S., 
where  in  1785  he  was  appointed  Attorney  General,  and 
in  1797  Chief  Justice  of  the  Supreme  Court.  He  died 
at  Halifax,  October  25,  1S42. 

Daniel  Bliss,  sou  of  Rev.  Daniel,  was  born  in  Concord, 
Mass.,  March  18,  1740,  and  graduated  at  Harvard  in 
1760.  He  studied  law  in  the  office  of  Abel  Willard  of 
Lancaster,  and  was  admitted  to  the  Worcester  County 
bar  in  1765.  He  settled  first  in  Rutland,  Mass.,  and 
afterwards,  in  1772,  in  Concord,  but  finally,  being  a 
Loyalist,  retired  to  Frederickton,  New  Brunswick,  where 
he  became  Chief  Justice  of  the  Provincial  Court  of 
Common  Pleas  and  died  in  1806. 

Samuel  Porter  was  of  Salem.  He  studied  law  with 
20 


306 


JUDICIAL  HISTORY 


Daniel  Farnham  of  Newburyport  and  was  admitted  to 
the  Essex  County  bar.  Being  a  Loyalist,  he  went  to 
England  and  died  in  1806.  He  graduated  at  Harvard 
in  1763. 

Joshua  Upham  was  born  in  Brookfield,  Mass.,  Novem- 
ber 14,  1741,  and  graduated  at  Harvard  in  1763.  He 
studied  law  in  New  York  and  Boston  and  being  a  Loyal- 
ist removed  to  New  Brunswick,  where  he  became  Judge 
of  the  Supreme  Court  of  the  Province.  He  was  the 
father  of  the  late  Hon.  Charles  W.  Upham  of  Salem. 
He  died  in  London  in  1808. 

Shearjashub  Bourne  was  born  in  Barnstable,  Mass., 
and  graduated  at  Harvard  in  1761.  He  began  practice 
in  Barnstable,  but  as  early  as  1796  was  a  member  of  the 
Suffolk  bar,  and  was  appointed  in  1801,  Chief  Justice  of 
the  Suffolk  County  Court  of  Common  Pleas. 

James  Sullivan  has  been  noticed  as  Judge  of  the  Su- 
perior Court  of  Judicature. 

Jeremiah  D.  Rogers  has  left  no  record  accessible  to 
the  writer. 

Oakes  Angier  was  son  of  Rev.  John  Angier  of  East 
Bridgewater,  and  great-grandson  of  Uriah  Oakes,  Pres- 
ident of  Harvard  College  from  1675  to  1681.  He 
graduated  at  Harvard  in  1764,  and  practiced  in  Swan- 
zey,  Plymouth  and  Bridgewater.    He  died  in  1786. 

John  Sprague  was  born  in  Rochester,  Mass.,  in  1740, 
and  graduated  at  Harvard  in  1765.  He  studied  law  in 
the  office  of  James  Putnam  of  Worcester,  and  was  ad- 
mitted to  the  Worcester  County  bar  in  1768.  He  re- 
moved to  Newport,  R.  I.,  and  later  to  Keene,  N.  H., 
and  finally  to  Lancaster,  Mass.,  where  he  became  a  part- 
ner of  Abel  Willard.  He  served  two  years  in  the  State 
Senate  and  was  High  Sheriff  of  Worcester  County  from 
1788  to  1792.  In  1798  he  was  appointed  Judge  of  the 
Common  Pleas  Court  of  Worcester  County  and  remained 
on  the  bench  until  his  death  in  1800. 


OF  MASSACHUSETTS. 


807 


Caleb  Strong  was  born  in  Northampton,  Mass.,  Janu- 
ary 9, 1745,  and  graduated  at  Harvard  in  1764.  He  was 
descended  from  John  Strong,  who  came  from  Taunton, 
England,  in  1630,  and  settled  in  Northampton.  He  was 
admitted  to  the  Hampshire  bar  in  1772,  and  settled  in 
his  native  town.  He  was  County  Attorney  from  1776 
to  1800,  a  member  of  the  State  Convention  in  1779,  and 
State  Senator  from  1780  to  1789.  He  was  a  member  of 
the  Convention  to  frame  a  national  constitution,  was 
United  States  Senator  from  1789  to  1796,  and  Governor 
of  Massachusetts  from  1800  to  1807  and  from  1812  to 
1816.    He  died  in  Northampton,  November  7,  1819. 

Elisha  Porter,  graduated  at  Harvard  in  1761,  and  was 
practicing  in  Hadley  in  1774.    He  died  in  1796. 

Theodore  Sedgwick,  son  of  Benjamin,  was  born  in 
Hartford,  Conn.,  in  May,  1746,  and  graduated  at  Yale 
in  1765.  In  April,  1766,  he  was  admitted  to  the  bar 
and  practiced  in  Great  Barrington  and  Sheffield.  He 
was  on  the  staff  of  General  John  Thomas  in  the  Revo- 
lution, Representative,  delegate  to  the  Continental  Con- 
gress, and  from  1788  to  1797,  a  member  of  Congress. 
He  was  Speaker  of  the  Massachusetts  House  of  Repre- 
sentatives in  1788-89,  United  States  Senator  from  1796 
to  1799,  and  in  1802,  he  was  appointed  Judge  of  the 
Supreme  Judicial  Court,  serving  until  his  death  in  Bos- 
ton, June  24,  1813. 

Benjamin  Hichborn  graduated  at  Harvard  in  1768 
and  practiced  in  Boston.    He  died  in  1817. 

Theophilus  Parsons,  son  of  Rev.  Moses  Parsons,  was 
born  in  Newbury,  Mass.,  February  24,  1750,  and  grad- 
uated at  Harvard  in  1769.  He  was  admitted  to  the  bar 
in  Portland  in  1774,  and  established  himself  in  New- 
buryport  in  1777.  In  1800  he  removed  to  Boston  and 
was  made  Chief  Justice  of  the  Supreme  Judicial  Court 
in  1806,  serving  until  his  death  in  Boston,  October  30, 
1813. 


308 


JUDICIAL  HTSTORY 


Jonathan  Bliss  was  born  in  Springfield,  Mass.,  in  1742, 
and  graduated  at  Harvard  in  1763.  He  studied  law 
with  Thomas  Hutchinson  and  was  a  Kepresentative  in 
1768.  He  was  proscribed  as  a  Loyalist  in  1778,  and  re- 
moved to  New  Brunswick  in  1783.  In  17S5  he  was  a 
member  of  the  Provincial  Legislature  and  Attorney  Gen- 
eral of  New  Brunswick.  In  1809  he  was  appointed 
Chief  Justice,  and  served  until  his  death,  which  occurred 
in  Frederickton,  N.  B.,  in  1822. 

William  Tudor  was  born  in  Boston,  March  28,  1750, 
and  graduated  at  Harvard  in  1769.  He  studied  law 
with  John  Adams  in  Boston,  and  was  admitted  to  the 
bar  of  Suffolk  County,  July  27,  1772.  He  served  on 
the  staff  of  Washington  as  Judge  Advocate  with  the 
rank  of  Colonel,  served  in  the  State  Senate  and  House 
of  Kepresentutives,  and  in  1809-10  was  Secretary  of 
the  Commonwealth.  He  married  Delia  Jarvis,  March  5, 
1778,  and  died  in  Boston,  July  8,  1819. 

Perez  Morton,  son  of  Joseph  and  Amiah  (Bullock) 
Morton,  was  born  in  Plymouth,  October  22,  1750,  and 
graduated  at  Harvard  in  1771.  He  was  appointed  At- 
torney General,  September  7, 1810,  and  held  office  until 
succeeded  by  James  T.  Austin,  May  24, 1832.  He  died 
October  14,  1837. 

William  Wetmore  graduated  from  Harvard  in  1770, 
and  was  a  member  of  the  Suffolk  bar  as  early  as  1787. 
In  1811  he  was  appointed  Associate  Justice  of  the  Cir- 
cuit Court  of  Common  Pleas  for  the  Middle  Circuit,  of 
which  Suffolk  County  formed  a  part.    He  died  in  1830. 

Levi  Lincoln,  son  of  Enoch  Lincoln,  was  born  in  Hing- 
ham,  Mass.,  May  15,  1749,  and  graduated  at  Harvard 
in  1772.  He  studied  law  with  Joseph  Hawley  of  North- 
ampton, and  was  admitted  to  the  bar  in  Worcester  where 
he  settled  and  was  at  once  appointed  Clerk  of  the  Courts. 
In  1776  he  was  appointed  Judge  of  Probate,  and  in 


OF  MASSACHUSETTS. 


309 


1779  was  made  agent  to  prosecute  claims  against  the 
estates  of  loyal  refugees.  He  was  a  delegate  to  the 
State  Convention  in  1780,  a  member  of  the  House  of 
Eepresentatives  in  1796,  of  the  Senate  in  1797,  member 
of  Congress  from  1799  to  1801,  United  States  Attorney 
General  from  1801  to  1805,  member  of  the  Council  in 
1806,  Lieutenant  Governor  in  1807-8,  acting  Governor 
in  1809,  and  in  1811  declined  a  seat  on  the  bench  of  the 
United  States  Supreme  Court.  He  died  in  Worcester, 
April  14,  1820. 

It  is  worthy  of  notice  as  indicating  the  extent  of  loyal 
feeling  among  educated  men  that  of  the  twenty-five 
Barristers  in  1768,  five  died  before  the  Revolution,  and 
that  of  the  twenty  remaining,  nine  were  sufficiently 
pronounced  in  their  adherence  to  the  crown  to  give  up 
their  estates  and  leave  the  country,  while  one  or  more 
in  addition  were  silent  sympathizers  with  the  refugees. 

In  the  early  days  of  the  Province  there  was  no  regu- 
lar period  of  study  prescribed  for  admission  to  the  bar. 
An  entry  in  the  diary  of  Judge  Lynde  under  date  of 
August  4, 1718,  taken  from  a  paper  read  by  Mr.  George 
Dexter  at  the  November  meeting  of  the  Massachusetts 
Historical  Society  in  1881  is  as  follows :  "  My  dear  Ben- 
jamin went  to  his  uncle,  Col.  S.  Brown,  for  three  years." 
Mr.  Dexter  went  on  to  say  :  "  This  was  presumably  for 
the  purpose  of  preparing  for  his  profession,  but  the 
father  having  himself  received  a  special  legal  education 
may  have  required  more  than  the  ordinary  professional 
training  for  his  son.  John  Adams,  who  was  admitted  an 
Attorney  November  2,  1758,  had  studied  with  Mr.  Put- 
nam of  Worcester  very  little  more  than  two  years,  and 
had  taught  a  school  there  at  the  same  time  that  he  pur- 
sued his  legal  studies.''  Judge  Washburn  expresses  the 
opinion  that  the  requirement  of  three  years'  study  was 
adopted  a  short  time  before  the  Revolution  on  the  rec- 


310 


JUDICIAL  HISTOHY 


ommendation  of  the  Essex  bar.  This  can  hardly  be 
true,  for  we  know  that  the  order  of  Barristers  existed 
before  1761,  and  that  the  requirements  for  admission  to 
the  order  were  three  years'  preliminary  study,  two 
years'  practice  in  the  Inferior  Court  of  Common  Pleas, 
and  two  years'  subsequent  practice  in  the  Superior 
Court.  With  regard  to  John  Adams  above  referred  to, 
in  the  absence  of  positive  proof  that  he  did  not  study 
three  years,  the  fact  that  he  graduated  from  Harvard 
in  the  summer  of  1755,  and  was  admitted  to  the  bar  in 
November,  1758,  suggests  the  possibility  that  he  was 
admitted  at  the  close  of  three  years'  preparation. 

The  term  Barrister  was  abolished  in  1806,  and  in  that 
year  Counsellors  were  for  the  first  time  recognized.  At 
the  March  term  of  the  Supreme  Judicial  Court  for  Suf- 
folk County  in  that  year,  the  following  rules  were 
adopted  and  may  be  found  in  the  second  volume  of 
the  Massachusetts  Keports : 

-'regula  gkneralis. 
"  Ordered  by  the  Court  that  hereafter  no  motion  for  a 
new  trial  shall  be  sustained  where  the  party  moving  it  shall 
be  entitled  to  a  review  of  right,  unless  the  right  of  review 
shall  be  relinquished  on  record,  excepting  when  the  verdict 
shall  have  been  given  against  the  direction  of  the  Court  in 
matters  of  law. 

"  REGULAE  GENERALES. 

"1.  No  Attorney  shall  do  the  business  of  Counsellor  un- 
less he  shall  have  been  made  or  admitted  sis  such  by  the  Court. 

"2.  All  Attorneys  of  the  Court  who  have  been  admitted 
three  years  before  the  sitting  of  the  Court  shall  be  and  are 
hereby  made  Counsellors  and  are  entitled  to  all  the  rights 
and  privileges  as  such.' 

*■'  3.  No  Attorney  or  Counsellor  shall  hereafter  be  ad- 
mitted without  a  previous  examination. 


OF  MASSACHUSETTS. 


311 


'•4.  The  Court  will  from  time  to  time  appoint  from  the 
Barristers  and  Counsellors  a  competent  number  of  examin- 
ers, any  two  or  more  of  whom  shall  examine  all  candidates 
for  admission  to  practice  as  Counsellors  or  Attorneys  at 
their  expense  ;  and  whenever  a  candidate  shall  upon  exam- 
ination be  by  them  deemed  duly  qualified,  they  shall  give  a 
certificate  in  form  following. 

"5.  If  after  an  examination  the  examiners  shall  refuse 
such  a  certificate  as  aforesaid  they  shall  be  required  to  give 
a  certificate  of  their  refusal,  and  the  candidate  may  appeal 
from  the  decision  of  the  examiners  to  a  justice  of  the  Court, 
who  will  thereupon  examine  him  and  either  confirm  or  re- 
verse the  decision  of  the  examiners  ;  and  in  case  of  reversal 
the  candidate  may  apply  to  the  Court  for  admission. 

"6.  If  upon  an  examination  such  certificate  shall  be  re- 
fused it  shall  be  conclusive,  unless  there  be  an  appeal  as 
aforesaid,  so  that  no  other  examiners  shall  thereafter  be  ap- 
pealed to  without  the  express  permission  and  direction  of 
the  Court. 

"  7.  No  examiner  shall  undertake  to  examine  any  candi- 
date who  was  in  whole  or  in  part  instructed  by  him  in  his 
office. 

"  8.  The  following  described  persons  shall  be  candidates 
for  examination  and  admission  to  the  bar  as  Attorneys, 
that  is  to  say,  firstly,  all  who  have  been  heretofore  admitted 
as  Attorneys  in  any  Court  of  Common  Pleas  in  the  Com- 
monwealth, and  who  at  the  time  they  shall  apply  for  exami- 
nation shall  be  in  regular  practice  therein  ;  and  second  all 
such  as  have,  besides  a  good  school  education,  devoted 
seven  years  at  the  least  to  literary  acquisition,  and  three 
years  thereof  at  the  least  in  the  office  and  under  the  instruc- 
tion of  a  Barrister  or  Counsellor  practicing  in  the  Court. 

'•9.  Before  the  examiners  shall  proceed  to  examine  any 
person  for  admission  as  an  Attorney  who  has  not  been  ad- 
mitted to  a  Court  of  Common  Pleas  it  shall  be  certified  to 
them  by  a  Counsellor  or  Barrister,  or  by  Counsellors  or 
Barristers  that  the  candidate  has  been  in  the  office  and  under 


312 


JUDICIAL  HISTORY 


the  instruction  of  a  Counsellor  or  Barrister  for  the  term  of 
three  years  at  the  least. 

"  10.  The  certificate  as  well  of  Barristers  and  Counsellors 
as  to  Attorneys,  on  the  certificate  of  examiners  as  to  Attor- 
neys and  Counsellors  shall  be  returned  to  the  clerk  and  by 
him  recorded. 

"11.  Any  person  who  has  been  admitted  as  an  Attorney 
and  as  such  practiced  two  years  may  be  a  candidate  for  ad- 
mission aud  examined  therefor. 

"  12.  Every  Counsellor  may  practice  as  an  Attorney. 

"13.  Whenever  an  action  shall  hereafter  be  entered  in 
Court  the  Attorney  or  Attorneys  for  the  plaintiff  or  appel- 
lant shall  become  such  of  record  and  within  the  first  two 
days  the  Attorney  or  Attorneys  for  the  defendant  or  appel- 
lee shall  cause  themselves  to  become  such  of  record. 

"  14.  In  all  cases  where  parties  do  not  appear  in  their  proper 
person  after  the  first  day  there  shall  be  an  Attorney  or  At- 
torneys of  record  for  the  defendant  or  appellee  and  none 
for  the  plaintiff  or  appellant,  the  defendant  or  appellee  on 
motion  shall  have  judgment  as  on  a  discontinuance  ;  and 
whenever  after  the  first  two  days  there  shall  be  an  Attorney 
or  Attorneys  on  record  for  the  plaintiff  or  appellant  and 
none  for  the  defendant  or  appellee,  the  plaintiff  or  appellant 
shall  on  motion  have  judgment  according  to  the  nature  of 
the  case. 

"  15.  Hereafter  the  Court  will  not  hear  any  argument 
against  on  a  question  of  law  arising  on  special  pleadings  as 
special  verdict,  case  stated,  or  motion  in  arrest  of  judgment, 
unless  the  material  papers  shall  have  been  copied  and  de- 
livered to  the  Judge  respectively  at  or  before  the  commence- 
ment of  the  term. 

"16.  All  who  now  are  Attorneys  of  the  Court  shall  be 
allowed  to  advocate  causes  on  issue  of  fact  for  the  term  of 
three  years  from  the  time  they  were  admitted  as  Attorneys 
respectively,  although  they  were  not  Counsellors." 

The  examiners  appointed  under  the  above  rules  were 


OF  MASSACHUSETTS. 


313 


Theophilus  Parsons,  Christopher  Gore,  Samuel  Dexter, 
Harrison  Gray  Otis,  William  Sullivan  and  Charles 
Jackson. 

At  the  September  term  in  Berkshire  in  the  same  year, 
1S06,  the  above  rules  were  amended,  by  adding,  "that 
any  person  who  shall  have  received  an  education  com- 
prising equal  advantages  with  that  expressed  in  the 
eighth  rule  of  the  court,  adopted  at  the  March  term,  al- 
though varying  in  the  mode  or  circumstances,  may  be 
examined  for  admission  as  an  attorney,  on  obtaining  a 
license  therefor  from  the  Court  or  Judge ;  and  if  ap- 
proved by  two  examiners  shall  receive  a  certificate  from 
them  conformable  in  substance  to  the  fourth  rule." 

The  liberality  with  which  the  rules  were  construed 
may  be  shown  in  the  case  of  Holder  Slocum,  Jr.,  which 
though  occurring  seven  or  eight  years  before  the  date 
of  the  adoption  of  the  above  code,  was  probably  attended 
by  the  same  prescription  of  qualification.  There  was 
some  doubt  about  his  literary  attainments,  and  the  Bar 
Association  referred  the  matter  to  Thomas  Edwards, 
John  Davis  and  Edward  Gray,  that,  not  having  received 
a  collegiate  education  he  might  be  examined.  The  com- 
mittee reported  "  that  they  find  Mr.  Slocum  has  so  far 
attended  to  the  Latin  language  that  a  moderate  degree 
of  attention  and  practice  will  probably  enable  him  to 
render  it  sufficiently  familiar  for  the  purposes  of  his  in- 
tended profession.  He  has  paid  no  attention  to  the 
Greek,  and  has  not  been  sufficiently  instructed,  in  the 
opinion  of  your  committee,  in  logic,  metaphysics,  and 
mathematics.  He  has  read  some  approved  writers  in 
history  and  has  attended  considerably  to  the  French 
language. 

"  It  is  the  opinion  of  your  committee  that  on  his  re- 
maining in  an  office  three  years  from  the  present  time, 
with  an  attention  for  part  of  the  time,  under  the  direc- 


314 


JUDICIAL  HISTORY 


tion  of  his  instructors,  to  history  and  metaphysics,  and 
occasionally  to  the  Latin  language,  it  will  be  proper,  at 
the  expiration  of  that  period,  if  he  continues  the  assidu- 
ity and  attention  which  he  has  hitherto  manifested,  to 
allow  of  his  admission  to  the  bar.'' 

The  records  show  that  Mr.  Slocum  was  duly  entered 
at  the  office  of  George  Richards  Minot,  and  was  ad- 
mitted to  the  bar  in  1801.  It  is  a  commentary  on  the 
boasts  of  our  higher  and  broader  education  that  with 
the  requirements  of  1801  probably  not  more  than  three 
per  cent  of  the  applicants  of  1899  would  have  been  ad- 
mitted to  the  bar  in  Massachusetts. 

At  the  Suffolk  term  of  the  Supreme  Judicial  Court 
in  1807  the  rules  were  still  further  amended  by  the  order 
"that  all  gentlemen  proposed  by  the  bar  for  admission 
as  Attorneys  of  the  Court  before  the  establishment  of 
the  rules  regulating  the  admission  of  Attorneys  pub- 
lished in  March,  1806,  may  be  admitted  as  Attorneys 
of  the  Court  in  the  same  manner  as  they  might  have 
been  before  the  establishment  of  the  said  rules ;  and 
after  admission  they  shall  be  considered  as  Attorneys 
of  this  Court  from  the  time  at  which  they  were  pro- 
posed for  admission,  and  before  the  publication  of  the 
said  rules,  and  this  rule  is  to  extend  to  all  Attorneys 
who  have  been  heretofore  admitted  Attorneys  of  the 
Court,  having  been  proposed  for  admission  before  the 
publication  of  the  said  rules." 

At  the  March  term  in  Suffolk  in  1810  the  Court  re- 
pealed the  Regulae  .Generales  of  1806  with  their  amend- 
ments, and  adopted  the  following  substitute : 

"  1.  That  any  person  may  be  admitted  as  Attorney  of 
this  Court  who  shall  have  had  a  liberal  education  and  regu- 
lar degree  at  some  public  college  and  shall  afterwards  have 
commenced  and  pursued  the  study  of  the  law  in  the  office 
and  under  the  instruction  of  some  Counsellor  of  the  Court 


OF  MASSACHUSETTS. 


315 


for  three  years  ;  and  shall  afterwards  have  been  admitted 
an  Attorney  of  the  Court  of  Common  Pleas  for  the  County 
in  which  such  Counsellor  with  whom  he  has  studied  the  law 
as  aforesaid  shall  dwell ;  having  first  been  recommended  by 
the  bar  of  the  said  County  to  the  Common  Pleas  as  having 
a  good  moral  character,  and  as  suitably  qualified  for  such 
admission ;  and  shall  afterwards  practice  with  fidelity  and 
ability  in  some  Court  of  Common  Pleas  within  the  State  for 
the  term  of  two  years  and  shall  then  be  recommended  by 
the  bar  for  admission  as  an  Attorney  of  this  Court,  when 
holden  for  the  County  in  which  the  person  so  recommended 
shall  dwell. 

"  2.  Any  person  not  having  a  liberal  education  and  a  reg- 
ular degree  as  aforesaid  who  shall  have  commenced  and 
pursued  the  study  of  the  law  in  the  office  of  some  Counsellor 
as  aforesaid  for  the  term  of  five  years  shall  be  considered 
as  having  a  qualification  for  admission  equivalent  to  the 
having  had  a  liberal  education  and  a  regular  degree  as  afore- 
said. 

"  3.  Any  person  having  a  liberal  education  and  a  regular 
degree  as  aforesaid  who  shall  afterwards  have  commenced 
and  pursued  the  study  of  the  law  in  any  other  State  in  the 
office  of  an  Attorney  of  the  highest  Judicial  Court  of  such 
State  for  one  year  at  the  least,  and  afterwards  shall  pursue 
the  study  of  the  law  in  the  office  of  some  Counsellor  of  this 
Court  for  the  term  of  two  years  shall  be  considered  as  hav- 
ing a  qualification  for  admission  equivalent  to  the  having 
commenced  and  pursued  the  study  of  the  law  for  three  years 
in  the  office  and  under  the  instruction  of  some  Counsellor  of 
this  Court. 

"  4.  Any  person  not  having  had  a  liberal  education  and  a 
regular  degree  as  aforesaid  who  shall  have  commenced  and 
pursued  the  study  of  the  law  in  any  other  State  in  the  office 
of  an  Attorney  of  the  highest  Judicial  Court  of  such  State 
for  the  term  of  two  years  at  the  least,  and  shall  afterwards 
have  pursued  the  study  of  the  law  with  some  Counsellor  of 
this  Court  for  the  term  of  three  years  shall  be  considered  as 


316 


JUDICIAL  HISTORY 


having  a  qualification  for  admission  equivalent  to  the  having 
had  a  liberal  education  and  a  regular  degree  as  aforesaid, 
and  to  the  having  pursued  the  study  of  the  law  for  three 
years  in  the  office  of  some  Counsellor  of  this  Court. 

"5.  The  bar  shall  not  recommend  for  admission  as  an 
Attorney  any  person  either  to  any  Court  of  Common  Pleas 
or  to  this  Court  unless  he  is  qualified  for  such  admission 
agreeably  to  the  provision  of  these  rules.  But  the  bar  may 
recommend  for  admission  as  an  Attorney  to  the  Common 
Pleas  any  person  now  duly  qualified  by  the  rules  hereby  re- 
pealed for  examination  and  admission  as  an  Attorney  of 
this  Court ;  and  further  the  bar  may  also  recommend  to  the 
Court  of  Common  Pleas,  for  admission  as  an  Attorney 
thereof  any  person  who  before  the  establishment  of  the  rules 
had  commenced  and  is  now  pursuing  the  study  of  the  law 
with  some  Counsellor  of  this  Court,  when  such  person 
would  by  virtue  of  the  rules  hereby  repealed  be  qualified  for 
examination  and  admission  as  an  Attorney  of  this  Court. 

•'6.  If  the  bar  of  any  Court  shall  unreasonably  refuse  to 
recommend  either  to  this  Court  or  to  any  Court  of  Common 
Pleas,  for  admission  as  an  Attorney,  any  person  suitably 
qualified  for  such  admission  ;  or,  if  after  the  recommenda- 
tion of  the  bar,  the  Common  Pleas  shall  unreasonably  refuse 
to  admit  as  an  Attorney  the  person  so  recommended,  such 
person  submitting  to  an  examination  by  one  of  the  Justices 
of  the  Court,  producing  to  him  sufficient  evidence  of  his 
good  moral  character,  may  be  admitted  as  an  Attorney  of 
this  Court  on  the  certificate  of  such  Justice  that  he  is  duly 
qualified  therefor  and  has  pursued  the  study  of  the  law 
agreeably  to  the  provisions  of  the  rules. 

"  7.  Any  person' who  shall  have  been  admitted  an  Attor- 
ney of  the  highest  Judicial  Court  of  any  other  State  in  which 
he  shall  dwell,  and  afterwards  shall  become  an  inhabitant  of 
this  State,  may  be  admitted  an  Attorney  or  Counsellor  of 
this  Court,  subject  to  the  discretion  of  the  Justice  thereof, 
after  due  inquiry  and  information  concerning  his  moral  char- 
acter and  professional  qualification. 


OF  MASSACHUSETTS. 


317 


"8.  Any  person  who  now  is,  or  who  shall  be,  an  Attor- 
ney of  this  Court,  having  practiced  law  thereiu  with  fidelity 
and  ability  as  an  Attorney  thereof  for  two  years,  may  be 
admitted  a  Counsellor  of  this  Court,  when  holden  for  the 
County  in  which  such  Attorney  shall  dwell,  on  the  recom- 
mendation of  the  bar  of  such  County,  or  without  such  recom- 
mendation if  it  be  unreasonably  refused;  unless  such  person 
was  admitted  an  Attorney  of  this  Court  because  he  had  been 
unreasonably  refused  admission  as  an  Attorney  of  the  Court 
of  Common  Pleas,  in  which  case  he  shall  not  be  recommended 
nor  admitted  as  a  Counsellor  of  this  Court  until  he  has  prac- 
ticed law  as  an  Attorney  thereof  for  the  term  of  four  years. 

"  9.  All  issues  in  law  and  in  fact  and  all  questions  of  law 
arising  on  writs  of  error,  certiorari  and  mandamus,  or  spe- 
cial verdict,  or  motions  for  new  trials  and  in  arrest  of  judg- 
ment, shall  be  argued  by  the  Counsellors  of  this  Court. 
And  the  Counsellors  of  this  Court  may  also  practice  as 
Attorneys." 

In  1836  a  law  was  passed  which  provided  that  any 
citizen  of  the  Commonwealth,  or  any  alien  who  had  ex 
pressed  his  intention  pursuant  to  law,  to  become  a  citi- 
zen, of  twenty-one  years  of  age,  of  good  moral  character, 
might  become  an  Attorney  after  three  years'  study,  and 
on  the  recommendation  of  an  Attorney  be  examined  for 
admission.  By  laws  passed  in  1852,  Attorneys  were 
permitted  admission  after  three  years'  study  in  the  office 
of  an  Attorney,  and  in  1876  it  was  provided  by  law  that 
an  Attorney  could  be  admitted  only  on  examination. 

In  1882  it  was  enacted  that  "  the  provisions  of  law 
relating  to  the  qualification  and  admission  to  practice 
of  attorneys  at  law,  shall  apply  to  women,"  and  in  1891 
a  very  stringent  law  was  passed,  imposing  a  fine  "  not 
exceeding  one  hundred  dollars  or  imprisonment  not  ex- 
ceeding six  months,"  on  persons  continuing  to  practice 
as  Attorneys  after  removal  from  the  bar  for  "  deceit, 


318 


JUDICIAL  HISTORY 


malpractice,  or  other  gross  misdemeanor,"  and  a  fine 
not  exceeding  five  hundred  dollars  or  imprisonment  not 
exceeding  one  year  for  a  second  conviction. 

In  1897  it  was  provided  by  a  law  which  as  amended 
in  1898  permits  any  citizen  of  the  Commonwealth,  or 
an  alien  who  has  made  the  primary  declaration  to  become 
a  citizen  of  the  United  States,  and  who  is  an  inhabi- 
tant of  the  Commonwealth,  of  the  age  of  twenty-one 
years,  to  petition  the  Supreme  Judicial  Court,  or  the 
Superior  Court  to  be  examined  for  admission,  on  the 
payment  of  a  fee  of  ten  dollars  to  the  clerk,  which  shall 
be  forwarded  by  him  to  the  Treasurer  of  the  Common- 
wealth. The  law  further  provides  that  "  the  Justices 
of  the  Supreme  Judicial  Court  shall  appoint  a  board  of 
bar  examiners  of  five  members,  no  two  of  whom  shall 
reside  in  the  same  county,  whose  term  of  office  shall 
commence  on  the  first  day  of  October,  1897,  and  who 
shall  hold  office,  one  for  the  term  of  one  year,  one  for 
the  term  of  two  years,  one  for  the  term  of  three  years, 
one  for  the  term  of  four  years,  and  one  for  the  term  of 
five  years,  and  thereafter  one  member  shall  be  appointed 
annually  for  the  term  of  five  years." 

Examinations  are  held  in  Boston  in  January  and  July, 
but  the  rules  of  the  board  provide  that  concurrent  ex- 
aminations may  be  appointed  to  be  held  in  other  places 
from  time  to  time,  as  may  appear  to  be  necessary  or  ex- 
pedient. 

There  was  a  Bar  Association  formed  in  1770  in  Boston, 
which  by  its  rules  regulated  admissions  to  the  bar.  It 
was  formed  on  the  evening  of  Wednesday,  January  1st, 
in  that  year,  at  the  Bunch  of  Grapes  tavern,  at  the  upper 
corner  of  State  and  Kilby  streets.  It  does  not  seem  to 
have  been  confined  to  Boston,  as  the  meeting  was  at- 
tended by  gentlemen  from  other  towns,  and  it  was  voted 
"that  the  Barristers  and  Attorneys  at  the  Superior 


OF  MASSACHUSETTS. 


319 


Court  belonging  to  this  and  neighboring  towns  will 
form  themselves  into  a  society  or  law  club,  to  meet  at 
Mr.  IngersolPs  on  the  evening  of  the  first  Wednesday 
of  every  month  for  the  year  ensuing."  The  gentlemen 
present  were  Benjamin  Kent,  James  Otis,  Samuel  Fitch, 
William  Reed,  Samuel  Swift,  Samuel  Quincy,  John 
Adams  and  Andrew  Cazneau,  all  of  whom  were  Barris- 
ters, and  Francis  Dana,  Josiah  Quincy  and  Sampson 
Salter  Blowers,  Attorneys.  At  the  meeting  on  the  first 
Wednesday  in  October,  1770,  it  was  voted  that  Messrs. 
Dana,  Quincy  and  Blowers  "  be  recommended  to  the  Su- 
perior Court  to  be  admitted  as  Barristers,  they  having 
studied  and  practiced  the  usual  time."  On  the  21st  of 
November  it  was  voted  that  Samuel  Sewall,  who  pro- 
duced a  certificate  from  the  Clerk  of  the  Inferior  Court 
that  he  was  admitted  as  Attorney  m  that  Court  on  the 
first  Tuesday  in  January,  1767,  be  recommended  for  ad- 
mission as  Attorney  to  the  Superior  Court. 

At  the  meeting  held  on  the  2d  of  January,  1771,  it 
was  voted  "  that  whenever  the  defendant's  counsel  shall ' 
point  out  to  the  plaintiff's  any  defect  in  his  writ  or  dec- 
laration, he  shall  have  liberty  to  amend  upon  payment 
of  six  shillings  before  plea  pleaded.  But  if  he  will  put 
the  defendant's  counsel  to  plead  and  the  writ  or  declara- 
tion is  adjudged  insufficient,  he  shall  then  pay  eighteen 
shillings  for  the  amendment,  in  case  the  amendment  is 
allowed  him  by  the  Court,  and  the  defendant  shall 
choose  costs  instead  of  an  imparlance.  This  rule  to  ex- 
tend only  to  such  defect  in  writs  and  declarations  as 
shall  be  owing  to  mistake  or  inadvertence,  or  other  fault 
of  the  counsel  who  drew  the  writ,  or  his  clerk." 

At  a  meeting  held  February  6,  1771,  it  was  agreed 
"  that  we  will  not  take  any  young  gentlemen  to  study 
with  us  without  previously  having  the  consent  of  the 
bar  of  the  County ;  that  we  will  not  recommend  any 


320 


JUDICIAL  HISTORY 


persons  to  be  admitted  to  the  Superior  Court  as  Attor- 
neys who  have  not  studied  with  some  barrister  three 
years  at  least,  nor  as  Attorneys  in  the  Superior  Court 
who  have  not  studied  as  aforesaid  and  been  admitted  at 
the  Inferior  Court  two  years  at  least,  nor  recommend 
them  as  Barristers  till  they  have  been  through  the  pre- 
ceding degrees  and  been  Attorneys  at  the  Superior 
Court  two  years  at  least,  except  those  gentlemen  who 
are  already  admitted  in  this  Court  as  Attorneys  at  Su- 
perior and  Inferior  Courts,  and  that  they  must  be  sub- 
ject to  the  rule  so  far  as  is  yet  to  come."  To  this  agree- 
ment it  was  added,  "  that  the  consent  of  the  bar  shall 
not  be  taken  but  at  a  general  meeting  of  the  bar  of  the 
County  and  shall  not  be  given  to  any  young  gentleman 
who  has  not  had  an  education  at  College  or  a  liberal 
education  in  the  judgment  of  the  bar." 

The  records  of  the  Association  give  the  names  of  the 
following  students  in  the  various  offices  which  may  be 
interesting  to  readers : 

Thomas  Edwards,  in  the  office  of  Josiah  Quincy, 
1772 ;  Jonathan  Williams,  in  the  office  of  John  Adams, 
1773  ;  Edward  Hill,  in  the  office  of  John  Adams,  1773  ; 
John  Trumbull,  in  the  office  of  John  Adams,  1774; 
Nathaniel  Brattle,  in  the  office  of  Mr.  Blowers,  1774; 
Nathan  Rice,  in  the  office  of  Mr.  Adams,  1774;  John 
Thaxter,  in  the  office  of  Mr.  Adams,  1774;  Joshua 
Thomas,  in  the  office  of  Josiah  Quincy,  1774;  Jonathan 
Mason,  in  the  office  of  Josiah  Quincy,  1774;  Henry 
Goodwin,  in  the  office  of  Wm.  Tudor,  1778;  Rufus 
Emory,  in  the  office  of  John  Lowell,  1778;  Fisher 
Ames,  in  the  office  of  Wm.  Tudor,  1778  ;  George  Rich- 
ards Minot,  in  the  office  of  Wm.  Tudor,  1780;  Peter 
Clarke,  in  the  office  of  Increase  Sumner,  1780 ;  Wm. 
Hunter  Torrens,  in  the  office  of  John  Lowell,  1781 ; 
Edward  Sohier,  in  the  office  of  John  Lowell,  1781 ;  Jo- 


OF  MASSACHUSETTS.  321 

seph  Hall,  in  the  office  of  Benjamin  Hichborn,  1781 ; 
Edward  Wendell,  in  the  office  of  John  Lowell,  1781 ; 
David  Leonard  Barnes,  in  the  office  of  James  Sullivan, 
1782;  Edward  Gray,  in  the  office  of  James  Sullivan, 
1783 ;  John  Brown  Cotting,  in  the  office  of  John  Low- 
ell, 1783 ;  Samuel  Quincy,  Jr.,  in  the  office  of  Christo- 
pher Gore,  1783 ;  Harrison  Gray  Otis,  in  the  office  of 
John  Lowell,  1783 ;  John  Rowe,  in  the  office  of  Mr. 
Tudor,  1783 ;  Richard  Brook  Roberts,  in  the  office  of 
Mr.  Hichborn,  1783 ;  Samuel  Cooper  Johonnot,  in  the 
office  of  Mr.  Sullivan,  17S1 ;  William  Hill,  in  the  office 
of  Mr.  Gore,  1784;  Fortescue  Yernon,  in  the  office  of 
Mr.  Hichborn,  1781;  John  Merrick,  in  the  office  of 
Thomas  Dawes,  1781;  John  Lowell,  Jr.,  in  the  office 
of  Mr.  Lowell,  17S6;  S.  Borland,  in  the  office  of  Mr. 
Lowell,  1786 ;  James  Sullivan,  Jr.,  in  the  office  of  Mr. 
Sullivan,  1786 ;  Thomas  Russell,  in  the  office  of  Mr. 
Lowell,  1786;  Isaac  Parker,  in  the  office  of  Mr.  Tudor, 
1787 ;  William  Cranch,  in  the  office  of  Thomas  Dawes, 
1787 ;  Samuel  Andrews,  in  the  office  of  Mr.  Hichborn, 
1788 ;  William  Lyman,  in  the  office  of  Mr.  Sullivan,  1788 ; 
jNathl.  Higginson,  in  the  office  of  Wm.  Wetmore,  1788  ; 
Phineas  Bruce,  in  the  office  of  Mr.  Hichborn,  1788 ;  Bes- 
senger  Foster,  in  the  office  of  Mr.  Parsons,  1788 ;  Edward 
Clarke,  in  the  office  of  Mr.  Lowell,  1789  ;  John  Lathrop, 
in  the  office  of  Mr.  Lowell,  1789  ;  Robert  Paine,  in  the 
office  of  Mr.  Paine,  1789  ;  Josiah  Quincy,  in  the  office  of 
Mr.  Tudor,  1790 ;  Nathaniel  Fisher,  in  the  office  of  Mr. 
Robbins,  1790  ;  Ebenezer  Gay,  in  the  office  of  Mr.  Gore, 
1790 ;  James  Prescott,  Jr.,  in  the  office  of  James  Sulli- 
van, 1790 ;  Samuel  Haven,  in  t'he  office  of  Mr.  Ames, 
1790;  Wm.  Sullivan,  in  the  office  of  James  Sullivan, 
1792 ;  John  Williams,  in  the  office  of  Mr.  Otis,  1792 ; 
John  Ward  Gurley,  in  the  office  of  Mr.  Lowell,  1796, 
provided  his  literary  qualifications  are  found  satisfac- 
21 


822 


JUDICIAL  HISTOHY 


tory  on  examination  by  Messrs.  Minot,  Otis  and  Quincy 
he  not  having  received  a  college  education ;  Samuel  A. 
Dorr,  in  the  office  of  Judge  Sullivan,  1797 ;  John  Heard, 
in  the  office  of  John  Davis,  1797 ;  Benjamin  Wood,  in 
the  office  of  John  Davis,  1797 ;  Holder  Slocum,  Jr.,  in 
the  office  of  George  R.  Minot,  1797 ;  Nicholas  Emory, 
in  the  office  of  Saml.  Livermore,  1798 ;  Charles  Pinck- 
ney  Sumner,  in  the  office  of  Judge  Minot,  1798 ;  Rich- 
ard Sullivan,  in  the  office  of  Win,  Sullivan,  1798; 
Humphrey  Devereux,  in  the  office  of  Mr.  Lowell,  1798  ; 
Thomas  Paine,  in  the  office  of  Mr.  Paine,  1799  ;  Thomas 
O.  Self  ridge,  in  the  office  of  Mr.  Paine,  1799 ;  Artemas 
Sawyer,  in  the  office  of  Mr.  Gay,  1799 ;  Wm.  Hyslop 
Sumner,  in  the  office  of  John  Davis,  1799;  Henry 
Cabot,  in  the  office  of  Mr.  Emery,  1800 ;  Nathl.  Spar- 
hawk,  in  the  office  of  George  Blake,  1S00 ;  Charles 
Lowell,  in  the  office  of  Mr.  LowTell,  1800  ;  Luther  Rich- 
ardson, in  the  office  of  Mr.  Paine,  1801 ;  David  I. 
Greene,  in  the  office  of  Wm.  Sullivan,  1800;  George 
Sullivan,  in  the  office  of  James  Sullivan,  1800  ;  Warren 
Dutton,  in  the  office  of  Mr.  Lowell,  1809;  Alpheus 
Baker,  in  the  office  of  Mr.  Lowell,  1801;  Samuel 
Mather  Crocker,  in  the  office  of  Mr.  Gray,  1801 ;  John 
Knapp,  in  the  office  of  John  Davis,  1801 ;  Thomas 
Welsh,  in  the  office  of  John  Davis,  1801 ;  Arthur  M. 
Walter,  in  the  office  of  Mr.  Otis,  1801 ;  Benjamin 
Wells,  in  the  office  of  Mr.  Otis,  1801 ;  Wm.  Smith 
Shaw,  in  the  office  of  Mr.  Otis,  1801 ;  John  Codman, 
in  the  office  of  Mr.  Lowell,  1802  ;  James  Elliott,  in  the 
office  of  Mr.  Lowell,  1802 ;  Timothy  Fuller,  in  the  of- 
fice of  Charles  Paine,  1802 ;  Timothy  Boutelle,  in  the 
office  of  Mi\  Gay,  1802  ;  David  Bradley,  in  the  office  of 
Mr.  Heard,  1802 ;  Aaron  Emmes,  in  the  office  of  Mr. 
Everett,  1802 ;  James  T.  Austin,  in  the  office  of  Wm. 
Sullivan,  1802;  William  Minot,  in  the  office  of  Joseph 
Hall,  1803. 


OF  MASSACHUSETTS. 


323 


Among  those  recommended  to  be  sworn  as  Attorneys 
were  Benjamin  Hichborn,  William  Tudor,  Jonathan 
Williams  Austin  and  Josiah  Quincy,  1772 ;  Nathaniel 
Coffin,  1773;  Increase  Sumner,  John  Bulkley  and 
Perez  Morton,  1771 ;  Christopher  Gore,  Samuel  Dagget, 
1778 ;  Jonathan  Mason,  1779 ;  Royal  Tyler,  Thomas 
Dawes  and  James  Hughes,  1780 ;  Benjamin  Lincoln, 
Jonathan  Fay,  Fisher  Ames,  Rufus  Amory  and  George 
E.  Minot,  1781 ;  David  Leonard  Barnes,  1783  ;  Thomas 
Edwards,  John  Thaxter,  Joseph  Hall,  Edward  Sohier 
and  Edward  Walker,  1784 ;  Edward  Gray,  1785  ;  Sam- 
uel Quincy,  John  Rowe  and  Harrison  Gray  Otis,  1786 ; 
Fortescue  Vernon  and  Thomas  Williams,  1787 ;  John 
Merrick,  Joseph  Bartlett  and  Thomas  Crafts,  1788  ; 
John  Lowell,  Jr.,  Isaac  Parker,  William  Lyman,  Sam- 
uel Andrews  and  Joseph  Blake,  1789 ;  Phineas  Bruce 
and  William  Cranch,  1790  ;  James  Prescott,  Jr.,  1791 ; 
George  Blake  and  Robert  Paine,  1792 ;  John  Callender, 
Josiah  Quincy,  Francis  Blake  and  Joseph  Rowe,  1793  ; 
William  Sullivan  and  John  Williams,  1795  ;  Isaac  Story', 
1796;  William  Thurston,  1797;  Esekiel  Bacon,  Samuel 
A.  Dorr,  John  Heard  and  Foster  Waterman,  1798 ; 
Charles  Davis,  Charles  Cushing,  Jotham  Bender  and 
John  W.  Gurley,  1799 ;  Holder  Slocum,  Jr.,  Richard 
Sullivan,  Humphrey  Devereux,  Nathaniel  Sparhawk, 
Artemas  Sawyer  and  Thomas  Paine,  1801 ;  Arthur  M. 
Walter,  1S02 ;  Warren  Dutton,  Aaron  H.  Putnam,  Is- 
rael Munroe,  Benjamin  Wells  and  John  Knapp,  1S03  ; 
Thomas  Welsh,  Jr.,  and  George  Sullivan,  1801. 

Among  the  votes  passed  by  the  Association  were  the 
following : 

"That  in  all  cases  when  a  gentleman  shall  be  pro- 
posed as  a  student,  who  has  not  had  a  college  education, 
he  shall  always  undergo  an  examination  by  a  committee 


324 


JUDICIAL  HISTORY 


appointed  by  the  bar  previous  to  his  admission  as  a 
student. 

"  That  all  students  of  colleges  out  of  the  State  be  not 
admissible  to  the  bar  until  they  shall  have  studied  one 
year  longer  than  those  educated  at  Harvard  University. 

"  That  no  student  be  recommended  to  the  Court  of 
Common  Pleas  for  admission  without  having  studied 
within  the  County  one  year  at  least  of  his  time. 

"  That  the  sum  to  be  paid  by  a  student  at  law  to  his 
instructors  shall  be  one  hundred  pounds  lawful  money 
at  least." 

The  records  of  the  Association  close  with  the  year 
1805,  immediately  preceding  the  adoption  of  the  Reg- 
ulae  Generales  in  March,  1806,  and  it  is  probable  that 
until  that  time  the  rules  of  the  Association  were  the 
only  rules  regulating  admission  to  the  bar.  The  law 
passed  July  3,  1782,  establishing  the  Supreme  Judicial 
Court,  gave  the  Court  authority  to  adopt  regulations  for 
admission  of  Attorne}^  and  the  creation  of  Barristers, 
but  as  at  the  time  of  the  passage  of  that  law  the  Asso- 
ciation had  for  ten  years  or  more  established  the  quali- 
fications of  Attorneys,  it  is  possible  that  the  Supreme 
Court  contented  itself  until  1806  with  rules  relating  to 
Barristers  only.  As  the  writer  recognizes  in  the  lists 
of  students  the  names  of  many  who  belonged  to  other 
counties  than  Suffolk,  he  thinks  it  possible  that  the  juris- 
diction of  the  Association  covered  the  whole  State,  and 
that  admissions  to  the  Supreme  Judicial  Court  were  con- 
ducted in  Boston.  £or  instance,  David  Leonard  Barnes 
was  of  Scituate,  Joshua  Thomas  of  Plymouth,  Daniel 
Leonard  of  Taunton,  Fisher  Ames  of  Dedham,  William 
C ranch  of  Weymouth,  Benjamin  Lincoln  of  Hingham, 
Joseph  Bartlett  of  Plymouth,  Samuel  Adams  Dorr  of 
Medfield.    But  as  he  recognizes  no  names  of  persons  be- 


OF  MASSACHUSETTS. 


325 


longing  to  the  western  part  of  the  State,  perhaps  the 
Association  was  confined  in  its  jurisdiction  to  the  east- 
ern part,  and  that  in  Worcester,  Hampshire  and  Berk- 
shire, the  only  western  counties  existing  at  that  time,  the 
Supreme  Judicial  Court  acted  without  definite  published 
regulations. 


APPENDIX 
A. 

THE  CHABTER  OF  "THE  COUNCIL  ESTABLISHED  AT  PLYMOUTH  IN 
THE  COUNTY  OF  DEVON  FOB  THE  PLANTING,  EULING,  OBDEBING 
AND  GOVEBNING  OF  NEW  ENGLAND  IN  AMEBIC  A." 


"James,  by  the  grace  of  God,  King  of  England,  Scotland, 
France  and  Ireland,  Defender  of  the  faith,  etc. 
"  To  all  whom  these  presents  shall  come,  greeting : 
"  Whereas  upon  the  humble  petition  of  divers  of  our  well- 
disposed  subjects,  that  intended  to  make  several  plantations 
in  the  parts  of  America  between  the  degrees  of  thirty-four 
and  forty-five,  We,  according  to  our  princely  inclination, 
favoring  much  the  worthy  disposition,  in  hope  thereby  to  ad- 
vance the  enlargement  of  the  Christian  religion,  to  the  glory 
of  God  Almighty,  as  also  by  that  means  to  stretch  out  the 
bounds  of  our  dominions  and  to  replenish  those  deserts  with 
people,  governed  by  laws  and  magistrates,  for  the  more 
peaceable  commerce  of  all  that  in  time  to  come  shall  have  oc- 
casion to  traffic  into  those  territories,  granted  unto  Sir  Thomas 
Gates,  Sir  George  Summers,  Knights ;  Thomas  Hamon  and 
Raleigh  Gilbert,  Esquires ;  and  others  their  associates,  for  the 
more  speedy  accomplishment  thereof,  by  our  letters  patent, 
bearing  date  the  10th  of  April  in  the  fourth  year  of  our  reign 
of  England,  France  and  Ireland,  and  of  Scotland  the  fortieth, 
free  liberty  to  divide  themselves  into  two  several  colonies ; 
the  one  called  the  first  colony  to  be  undertaken  and  advanced 
by  certain  knights,  gentlemen  and  merchants  in  and  about 
our  city  of  London ;  the  other,  called  the  second  colony  to 
be  undertaken  and  advanced  by  certain  knights,  gentlemen, 
merchants  and  their  associates  in  or  about  our  cities  of  Bristol, 
Exor,  and  our  town  of  Plymouth,  and  other  places,  as  in  and 
(327) 


328 


JUDICIAL  HISTORY 


by  our  said  letters  patents,  among  other  things  more  at  large, 
it  doth  and  may  appear. 

"  And  whereas,  since  that  time,  upon  the  humble  petition 
of  the  said  adventurers  and  planters  of  the  said  first  colony, 
we  have  been  graciously  pleased  to  make  them  one  distinct 
and  entire  body  by  themselves,  giving  unto  them  their  dis- 
tinct limits  and  bounds,  and  have  upon  their  like  humble 
request  granted  unto  them  divers  liberties,  privileges,  enlarge- 
ments and  immunities,  as  in  and  by  our  several  letters  pat- 
ents it  doth  and  may  more  at  large  appear. 

"Now,  forasmuch  as  we  have  been,  in  like  manner  humbly 
petitioned  unto  by  our  trusty  and  well  beloved  servant,  Sir 
Ferdinando  Gorges,  Knight,  captain  of  our  fort  and  island 
by  Plymouth,  and  by  certain  the  principal  knights  and  gen- 
tlemen adventurers  of  the  said  second  colony,  and  by  divers 
other  persons  of  quality,  who  now  intend  to  be  their  associ- 
ates, divers  of  which  have  been  at  great  and  extraordinary 
charges,  and  sustained  many  losses,  in  seeking  and  discovering 
a  place  fit  and  convenient  to  lay  the  foundation  of  a  hopeful 
plantation,  and  have,  divers  years  past,  by  God's  assistance, 
and  their  own  endeavors,  taken  actual  possession  of  the  con- 
tinent hereafter  mentioned,  in  our  name  and  to  our  use,  as 
sovereign  lord  thereof,  and  have  settled  already  some  of  our 
people  in  places  agreeable  to  their  desires  in  those  parts,  and 
in  confidence  of  prosperous  success  therein,  by  the  continu- 
ance of  God's  divine  blessing  and  our  royal  permission,  have 
resolved  in  a  more  plentiful  and  effectual  manner  to  prosecute 
the  same,  and  to  that  purpose  and  intent  have  desired  of  us 
for  their  better  encouragement  and  satisfaction  therein;  and 
that  they  may  avoid  all  confusion,  questions  or  differences 
between  themselves  and  those  of  the  said  first  colony ;  that 
we  would  likewise  be  graciously  pleased  to  make  certain  ad- 
venturers, intending  to  erect  and  establish  fisheries,  trade  and 
plantations  within  the  territories,  precincts  and  limits  of  the 
said  second  colony  and  then  successors,  one  several  distinct 
and  entire  body  and  to  grant  unto  them  such  estate,  charters, 
privileges,  enlargements  and  immunities  there  as  are  in  their 


OF  MASSACHUSETTS. 


329 


own  letters  patent  hereafter  particularly  expressed  and  de- 
clared. 

"  And  forasmuch  as  we  have  been  certainly  given  to  un- 
derstand by  divers  of  our  good  subjects,  that  have  for  these 
many  years  past,  frequented  those  coasts  and  territories  be- 
tween the  degrees  of  forty  and  forty-eight,  that  there  is  no 
other  the  subjects  of  any  Christian  King  or  State,  by  any 
authority  from  their  sovereign  lords  or  princes,  actually  in 
possession  of  any  of  the  said  lands  or  precincts,  whereby  any 
right,  claim,  interest  or  title  may,  might  or  ought  by  that 
means  accrue,  belong  or  appertain  unto  then  or  any  of  them, 

"  And  also,  for  that  we  have  been  further  given  certainty  to 
know,  that  within  these  late  years  there  hath,  by  God's  visita- 
tion, reigned  a  wonderful  plague,  together  with  mauy  horrible 
slaughters  and  murders  committed  among  the  savages  and 
British  people  those  heretofore  inhabiting,  in  a  manner  to  the 
utter  destruction,  devastation  and  depopulation  of  that  whole 
territory,  so  as  there  is  not  left  for  many  leagues  together,  in 
a  manner,  any  that  do  claim  or  challenge  any  kind  of  interest 
therein,  nor  any  other  superior  lord  or  sovereign  to  make 
claim  thereunto,  whereby  we  in  our  judgment,  are  persuaded 
and  satisfied  that  the  appointed  time  is  come  in  which  Al- 
mighty God  in  His  great  goodness  and  bounty  towards  us  and 
our  people,  hath  thought  fit  and  determined  that  the  large 
and  goodly  territories,  deserted,  as  it  were,  by  their  natural 
inhabitants,  should  be  possessed  and  enjoyed  by  such  of  our 
subjects  and  people  as  heretofore  have  and  hereafter  shall  by 
His  mercy  and  favor  and  by  His  powerful  arm,  be  directed 
and  conducted  thither ;  in  the  contemplation  and  serious  con- 
sideration whereof  we  have  thought  it  fit,  according  to  our 
kingly  duty,  so  much  as  in  us  lieth,  to  second  and  follow 
God's  sacred  will,  rendering  reverend  thanks  to  His  Divine 
Majesty  for  His  gracious  favor  in  laying  open  and  revealing 
the  same  unto  us  before  any  other  Christian  prince  or  state, 
by  which  means,  without  offence,  and,  as  we  trust,  to  His 
glory,  we  may  with  boldness  go  on  to  the  settling  of  so  hope- 
ful a  work,  which  tendeth  to  the  reducing  and  conversion 


330 


JUDICIAL  HISTORY 


of  such  savages  as  remain  wandering  in  desolation  and  dis- 
tress to  civil  society  and  Christian  religion,  to  the  enlarge- 
ment of  our  own  dominions  and  the  advancement  of  the  for- 
tunes of  such  of  our  good  subjects  as  shall  willingly  interest 
themselves  in  the  said  employment,  to  whom  we  cannot  but 
give  singular  commendations  for  their  so  worthy  intention 
and  enterprise. 

"  We  therefore,  of  our  special  grace,  mere  motion,  and  cer- 
tain knowledge,  by  the  advice  of  our  lords  and  others  of  our 
privy  council,  have  for  us,  our  heirs  and  successors,  granted, 
ordained  and  established,  and  in  and  by  these  presents,  do 
for  us,  our  heirs  and  successors,  grant,  ordain  and  establish 
that  all  that  circuit,  continent,  precincts  and  limits  in  Amer- 
ica lying  and  being  in  breadth  from  forty  degrees  of  northerly 
latitude  from  the  equinoctial  line  to  forty-eight  degrees  of  the 
said  northerly  latitude,  and  in  length  by  all  the  breadth  afore- 
said throughout  the  main  land,  from  sea  to  sea,  with  all  the 
seas,  rivers,  islands,  creeks,  inlets,  ports  and  havens  within 
the  degrees,  precincts  and  limits  of  the  said  latitude  and 
longitude,  shall  be  the  limits  and  bounds  and  precincts  of  the 
said  second  colony. 

"  And  to  the  end  that  the  said  territories  may  forever  here- 
after be  more  particularly  and  certainly  known  and  distin- 
guished, our  will  and  pleasure  is  that  the  same  shall,  from 
henceforth,  be  nominated,  termed  and  called  by  the  name  of 
New  England  in  America,  and  by  that  name  of  New  England 
in  America,  the  said  circuit,  precinct,  limit,  continent,  islands 
and  places  in  America  aforesaid,  we  do,  by  these  presents, 
for  us,  our  heirs  and  successors,  name,  call,  erect,  found  and 
establish,  and  by  that  name  do  have  continuance  forever. 

"And  for  the  better  plantation,  ruling  and  governing  of 
the  aforesaid  New  England  in  America,  we  will,  ordain,  con- 
stitute, assign,  limit  and  appoint,  and  for  us,  our  heirs  and  suc- 
cessors, we,  by  the  advice  of  the  lords  and  others  of  the  said 
privy  council,  do,  by  these  presents,  ordain,  constitute,  limit 
and  appoint,  that  from  henceforth  there  shall  be  forever  here- 
after, in  our  town  of  Plymouth,  in  the  County  of  Devon,  one 


OF  MASSACHUSETTS. 


331 


body  politic  and  corporate,  which  shall  have  perpetual  succes- 
sion, which  shall  consist  of  the  number  of  forty  persons  and 
no  more,  which  shall  be,  and  shall  be  called  and  known  by  the 
name  of  the  Council  established  at  Plymouth,  in  the  County  of 
Devon,  for  the  planting,  ruling,  ordering  and  governing  of 
New  England  in  America,  and  for  that  purpose  we  have  at  and 
by  the  nomination  and  request  of  the  said  petitioners,  granted, 
ordained,  established  and  confirmed,  and,  by  these  presents, 
for  us,  our  heirs  and  successors,  do  grant,  ordain,  establish 
and  confirm  our  right  trusty  and  right  well  beloved  cousins 
and  counsellors,  Lodowick,  duke  of  Lenox,  lord  steward  of  our 
household ;  George,  lord  marquis  Buckingham,  our  high  admi- 
ral of  England;  James,  marquis  Hamilton;  WiUiam,  earl  of 
Pembroke,  lord  chamberlain  of  our  household ;  Thomas,  earl 
of  Arundel;  and  our  right  trusty  and  right  well  beloved 
cousin  William,  earl  of  Bath ;  and  our  right  trusty  and  right 
well  beloved  cousin  and  counsellor,  Henry,  earl  of  Southamp- 
ton ;  and  our  right  trusty  and  right  well  beloved  cousin, 
William,  earl  of  Salisbury ;  and  Robert,  earl  of  Warwick ; 
and  our  right  trusty  and  right  well  beloved  John,  viscount 
Haddington ;  and  our  right  trusty  and  right  well  beloved 
counsellor,  Edward,  lord  Zouch,  lord  warden  of  our  cinque 
ports,  and  our  trusty  and  well  beloved  Edmond,  lord  Shef- 
field, Edward,  lord  Gorges ;  and  our  well  beloved  Sir  Edward 
Seymor,  knight  and  baronet;  Sir  Eobert  Mansel;  Sir  Ed- 
ward Zouch,  our  knight  marshal ;  Sir  Dudley  Diggs,  Sir 
Thomas  Roe,  Sir  Ferdinando  Gorges,  Sir  Francis  Popham, 
Sir  John  Brooks,  Sir  Thomas  Gates,  Sir  Richard  Hawkins, 
Sir  Richard  Edgecomb,  Sir  Allen  Apsley,  Sir  Warwick  Heale, 
Sir  Richard  Catchmay,  Sir  John  Bourgchier,  Sir  Nathaniel 
Rich,  Sir  Edward  Giles,  Sir  Giles  Mompesson,  Sir  Thomas 
Worth,  knights  ;  and  our  well  beloved  Matthew  Sutcliff ,  dean 
of  Exeter;  Robert  Heath,  Esq.,  recorder  of  our  city  of  Lon- 
don ;  Henry  Bourgchier,  John  Drake,  Raleigh  Gilbert,  George 
Chudley,  Thomas  Hamon  and  John  Argall,  esquires ;  to  be, 
and  in  and  by  these  presents,  we  do  appoint  them  to  be  the 
first  modern  and  present  Council,  established  at  Plymouth, 


332 


JUDICIAL  HISTORY 


in  the  County  of  Devon,  for  the  planting,  ruling,  ordering  and 
governing  of  New  England  in  America,  and  that  they,  and  the 
survivors  of  them,  and  such  as  the  survivors  and  survivor 
of  them  shall,  from  time  to  time,  elect  and  choose  to  make 
up  the  aforesaid  number  of  forty  persons,  when,  and  as  often 
as  any  of  them  or  any  of  their  successors  shall  happen  to  de- 
cease or  to  be  removed  from  being  of  the  said  council,  shall 
be,  in  and  by  these  presents,  incorporated,  to  have  a  perpet- 
ual succession  forever,  in  deed,  fact  and  name,  and  shall  be 
one  body  corporate  and  politic ;  and  that  those,  and  such 
said  persons  and  their  successors,  and  such  as  shall  be  elected 
and  chosen  to  succeed  them,  as  aforesaid,  shall  be,  and  by 
these  presents,  are  and  be  incorporated,  named  and  called 
by  the  name  of  the  Council  established  at  Plymouth,  in  the 
County  of  Devon,  for  the  planting,  ruling  and  governing  of 
New  England  in  America ;  and  them  the  said  duke  of  Lenox, 
marquis  Buckingham,  marquis  Hamilton,  earl  of  Pembroke, 
earl  of  Arundel,  earl  of  Bath,  earl  of  Southampton,  earl  of 
Salisbury,  earl  of  Warwick,  viscount  Haddington,  lord  Zouch, 
lord  Sheffield,  lord  Gorges,  Sir  Edward  Seymor,  Sir  Robert 
Mansel,  Sir  Edward  Zouch,  Sir  Dudley  Diggs,  Sir  Thomas 
Roe,  Sir  Ferdinando  Gorges,  Sir  Francis  Popham,  Sir  John 
Brooks,  Sir  Thomas  Gates,  Sir  Richard  Hawkins,  Sir  Richard 
Edgecomb,  Sir  Allen  Apsley,  Sir  Warwick  Heale,  Sir  Rich- 
ard Catchmay,  Sir  John  Bourgchier,  Sir  Nathaniel  Rich,  Sir 
Edward  Giles,  Sir  Giles  Mompesson,  Sir  Thomas  Worth, 
knights;  Matthew  Sutcliff,  Robert  Heath,  Henry  Bourg- 
chier, John  Drake,  Paleigh  Gilbert,  George  Chudley,  Thomas 
Hamon  and  John  Argall,  esquires,  and  their  successors,  one 
body  corporate  and  politic,  in  deed  and  in  name,  by  the  name 
of  the  Council  established  at  Plymouth,  in  the  County  of 
Devon,  for  the  planting,  ruling  and  governing  of  New  Eng- 
land in  America. 

"  We  do  by  these  presents,  for  us,  our  heirs  and  succes- 
sors, really  and  fully  incorporate,  erect,  ordain,  name,  con- 
stitute and  establish,  and  that,  by  the  same  name  of  the  said 
council,  they  and  their  successors,  forever  hereafter  be  incor- 


OF  MASSACHUSETTS. 


333 


porated,  named  and  called,  and  shall,  by  the  same  name, 
have  perpetual  succession. 

"And  further,  we  do  hereby,  for  us,  our  heirs  and  suc- 
cessors, grant  unto  the  said  council  established  at  Plymouth, 
that  they  and  their  successors,  by  the  same  name,  be,  and 
shall  be,  and  shall  continue  persons  able  and  capable  in  the 
law,  from  time  to  time,  and  shall,  by  that  name  of  council 
aforesaid,  have  full  power  and  authority,  and  lawful  capacity 
and  ability,  as  well  to  purchase,  take,  hold,  receive,  enjoy 
and  to  have  to  them  and  their  successors,  forever,  any 
manors,  lands,  tenements,  rents,  royalties,  privileges,  infmu- 
nities,  reversions,  annuities,  hereditaments,  goods  and  chat- 
tels whatsoever,  of,  or  from  us,  our  heirs  and  successors, 
and  of,  or  from  any  other  person  or  persons  whatsoever,  as- 
well  in  and  within  this  our  realm  of  England,  as  in  and  within 
any  other  place  or  places  whatsoever  or  wheresoever,  and  the 
same  manors,  lands,  tenements  and  hereditaments,  goods  or 
chattels,  or  any  of  them,  by  the  same  name,  to  alien  and  sell, 
or  to  do,  execute,  or  ordain  and  perform  all  other  matters 
and  things  whatsoever  to  the  said  incorporation  and  plantation 
concerning  and  belonging. 

"  And  further,  our  will  and  pleasure  is  that  the  said  coun- 
cil, for  the  time  being,  and  their  successors,  shall  have  full 
power  and  lawful  authority,  by  the  name  aforesaid,  to  sue 
and  be  sued,  implead  and  to  be  impleaded,  answer  and  to 
be  answered  unto,  in  all  manner  of  courts  and  places  that 
now  are,  or  hereafter  shall  be,  within  this  our  realm,  and 
elsewhere,  as  well  temporal  as  spiritual,  in  all  manner  of  suits 
and  matters  whatsoever,  and  of  what  nature  or  kind  soever 
such  suits  or  actions  be  or  shall  be. 

"  And  our  will  and  pleasure  is  that  the  said  forty  persons, 
or  the  greater  number  of  them,  shall,  and  may,  from  time  to 
time,  and  at  any  time  hereafter,  at  their  own  will  and  pleas- 
ure, according  to  the  laws,  ordinances,  and  orders  of  or  by 
them,  or  by  the  greater  part  of  them  hereafter,  in  manner 
and  form  in  these  presents  mentioned  to  be  agreed  upon,  to 
elect  and  choose  amongst  themselves,  one  of  the  said  forty 


334 


JUDICIAL  HISTORY 


persons,  for  the  time  being,  to  be  president  of  the  said  coun- 
cil, which  president,  so  elected  and  chosen,  we  will,  shall 
continue  and  be  president  of  the  said  council  for  so  long  a 
time  as  by  the  orders  of  the  said  council,  from  time  to  time 
to  be  made,  as  hereafter  is  mentioned,  shall  be  thought  fit, 
and  no  longer ;  unto  which  president,  or,  in  his  absence,  to 
any  such  person  as,  by  the  orders  of  the  said  council,  shall 
be  thereunto  appointed,  we  do  give  authority  to  give  orders 
for  the  warning  of  the  said  council  and  summoning  the  com- 
pany to  their  meetings. 

"And  our  will  and  pleasure  is  that,  from  time  to  time, 
when,  and  so  often  as  any  of  the  said  council  shall  happen 
to  decease,  or  to  be  removed  from  being  of  the  said  council, 
that  then,  and  so  often,  the  survivors  of  them  of  the  said 
council,  and  no  other,  or  the  greater  number  of  them,  who 
then  shall  be,  from  time  to  time,  left  and  remaining,  and  who 
shall,  or  the  greater  number  of  which,  that  shall  be  assembled 
at  a  public  court,  or  meeting,  to  be  held  for  the  said  com- 
pany, shall  elect  and  choose  one  or  more  other  person  or 
persons  to  be  of  the  said  council,  and  which,  from  time  to 
time,  shall  be  of  the  said  council,  so  that  the  number  of  forty 
persons  of  the  said  council  may,  from  time  to  time,  be  sup- 
plied. 

"  Provided  always,  that  as  well  the  persons  herein  named, 
to  be  of  the  said  council,  as  every  other  councillor  hereafter 
to  be  elected,  shall  be  presented  to  the  lord  chancellor  of 
England,  or  to  the  lord  high  treasurer  of  England,  or  to  the 
lord  chamberlain  of  the  household,  of  us,  our  heirs  and  suc- 
cessors, for  the  time  being,  to  take  his  and  their  oath  and 
oaths  of  a  councillor  and  councillors,  to  us,  our  heirs  and 
successors,  for  the  said  company  and  colony  in  New  England. 

"And  further,  we  will  grant,  by  these  presents,  for  us, 
our  heirs  and  successors,  unto  the  said  council,  and  their 
successors,  that  they  and  their  successors  shall  have,  and 
enjoy  forever,  a  common  seal,  to  be  engraven  according  to 
their  discretions ;  and  that  it  shall  be  lawful  for  them  to  ap- 
point what  other  seal  or  seals  they  shall  think  most  meet  and 


OF  MASSACHUSETTS. 


335 


necessary,  either  for  their  use,  as  they  are  one  united  body, 
incorporate  here,  or  for  the  public  use  of  their  government 
and  ministers  in  New  England  aforesaid,  whereby  the  said 
incorporation  may  or  shall  seal  any  manner  of  instrument 
touching  the  same  corporation;  and  the  manors,  lands,  ten- 
ants, rents,  reversions,  annuities,  hereditaments,  goods,  chat- 
tels, affairs  and  any  other  things  belonging  unto,  or  in  any 
wise  appertaining,  touching  or  concerning  the  said  council 
and  their  successors,  or  concerning  the  said  corporation  and 
plantation,  in  and  by  their  own  letters-patent,  as  aforesaid 
founded,  erected  and  established. 

"  And  we  do  further,  by  these  presents,  for  us,  our  heirs 
and  successors,  grant  unto  the  said  council  and  their  suc- 
cessors, for  the  time  being,  in  their  discretions,  from  time  to 
time,  to  admit  such  and  so  many  person  and  persons  to  be 
made  free  and  enabled  to  trade  and  traffic  unto,  within  and  in 
New  England  aforesaid,  and  unto  every  part  and  parcel 
thereof,  or  to  have  powers  and  enjoy  any  lands  or  heredita- 
ments in  New  England  aforesaid,  as  they  shall  think  fit  ac- 
cording to  the  laws,  orders,  constitutions  and  ordinances  by 
the  said  council  and  their  successors,  from  time  to  time,  to 
be  made  and  established,  by  virtue  of  and  according  to  the 
true  intent  of  these  presents,  and  under  such  conditions, 
reservations  and  agreements  as  the  said  council  shall  set 
down,  order  and  direct  and  not  otherwise. 

"  And  further,  of  our  special  grace,  certain  knowledge  and 
mere  motion,  for  us,  our  heirs  and  successors,  we  do,  by 
these  presents,  give  and  grant  full  power  and  authority  to 
the  said  council,  and  their  successors,  that  the  said  council, 
for  the  time  being,  or  the  greater  part  of  them,  shall  and 
may,  from  time  to  time,  nominate,  make,  constitute,  ordain 
and  confirm  by  such  name  or  names,  style  or  styles,  as  to 
them  shall  seem  good,  and,  likewise,  to  revoke  and  discharge, 
change  and  alter,  as  well  all  and  singular,  governors,  officers 
and  ministers,  which  hereafter  shall  be  by  them  thought  fit 
and  needful  to  be  made  or  used,  as  well  to  attend  the  busi- 
ness of  the  said  company  here  as  for  the  government  of  the 
said  colony  and  plantation. 


336 


JUDICIAL  HISTORY 


"And  also  to  make,  ordain  and  establish  all  manner  of 
orders,  laws,  directions,  instructions,  forms  and  ceremonies 
of  government  and  magistracy,  fit  and  necessary  for  and 
concerning  the  government  of  the  said  colony  and  plantation, 
so  always  as  the  same  be  not  contrary  to  the  laws  and  stat- 
utes of  this  our  realm  of  England,  and  the  same  at  all  times 
hereafter,  to  abrogate,  revoke  or  change,  not  only  within  the 
precincts  of  the  said  colony,  but  also  upon  the  seas,  in  going 
and  coming  to  and  from  the  said  colony,  as  they,  in  their 
good  discretion,  shall  think  to  be  fittest  for  the  good  of  the 
adventurers  and  inhabitants  there. 

"And  we  do  further,  of  our  special  grace,  certain  knowl- 
edge and  mere  motion,  grant,  declare  and  ordain  that  such 
principal  governor  as,  from  time  to  time,  shall  be  authorized 
and  appointed,  in  manner  and  form  in  these  presents  hereto- 
fore expressed,  shall  have  full  power  and  authority  to  use 
and  exercise  martial  laws  in  cases  of  rebellion,  insurrection 
and  mutiny,  in  as  large  and  ample  a  manner  as  our  lieuten- 
ants in  counties  within  our  realm  of  England  have,  or  ought 
to  have,  by  force  of  their  commission  of  lieutenancy. 

"  And  forasmuch  as  it  shall  be  necessary  for  all  such  our 
loving  subjects  as  shall  inherit  within  the  said  precincts  of 
New  England  aforesaid,  to  determine  to  live  together  in  the 
fear  and  true  worship  of  Almighty  God,  Christian  peace  and 
civil  quietness,  each  with  the  other,  whereby  every  one  may, 
with  more  safety,  pleasure  and  profit,  enjoy  that,  whereunto 
they  shall  attain  with  great  pain  and  peril. 

"  We,  for  us,  our  heirs  and  successors,  are  likewise  pleased 
and  contented,  and,  by  these  presents,  do  give  and  grant 
unto  the  said  council  and  their  successors,  and  to  such  gov- 
ernors, officers  and  ministers  as  shall  be,  by  said  council,  con- 
stituted and  appointed  according  to  the  natures  and  limits  of 
their  offices  and  places  respectively,  that  they  shall  and  may, 
from  time  to  time,  forever  hereafter,  within  the  said  precincts 
of  New  England,  or  in  the  way  by  the  seas,  thither  and  from 
thence,  have  full  and  absolute  power  and  authority  to  correct, 
punish,  pardon,  govern  and  rule  all  such  the  subjects  of  us,  our 


OF  MASSACHUSETTS. 


337 


heirs  and  successors,  as  shall,  from  time  to  time,  adventure 
themselves  in  any  voyage  thither,  or  that  shall,  at  any  time 
hereafter,  inhabit  in  the  precincts  and  territories  of  the  said 
colony  as  aforesaid,  according  to  such  laws,  orders,  ordi- 
nances, directions  and  instructions  as  by  the  said  council 
aforesaid  shall  be  established ;  and,  in  defect  thereof,  iu  cases 
of  necessity,  according  to  the  good  discretions  of  the  said 
governors  and  officers  respectively,  as  well  in  cases  capital 
and  criminal  as  civil,  both  marine  and  others  ;  so,  always,  as 
the  said  statutes,  ordinances  and  proceedings,  as  near  as 
conveniently  may  be  agreeable  to  the  laws,  statutes,  govern- 
ment and  policy  of  this  our  realm  of  England. 

"  And,  furthermore,  if  any  person  or  persons,  adventurers 
or  planters  of  the  said  colony,  or  any  other,  at  any  time  or 
times  hereafter,  shall  transport  any  moneys,  goods  or  mer- 
chandises out  of  any  our  kingdoms,  with  a  pretence  and  pur- 
pose to  land,  set,  or  otherwise  to  dispose  of  the  same  within  the 
limits  and  bounds  of  the  said  colony,  and  yet,  nevertheless, 
being  at  sea  or  after  he  hath  landed  within  any  part  of  the 
said  colony,  shall  carry  the  same  into  any  other  foreign 
country,  with  a  purpose  there  to  set  and  dispose  thereof,  that 
then  all  the  goods  and  chattels  of  the  said  person  or  persons, 
so  offending  and  transported,  together  with  the  ship  or  vessel 
wherein  such  transportation  was  made,  shall  be  forfeited  to 
us,  our  heirs  and  successors. 

"And  we  do  further,  of  our  special  grace,  certain  knowl- 
edge and  mere  motion,  for  us,  our  heirs  and  successors,  for 
and  in  respect  of  the  considerations  aforesaid,  and  for  divers 
other  good  causes  and  considerations,  us  thereunto  especially 
moving,  and  by  the  advice  of  the  lords  and  others  of  our  said 
privy  council,  have  absolutely  given,  granted  and  confirmed, 
and,  by  these  presents,  do  absolutely  give,  grant  and  con- 
firm unto  the  said  council,  called  the  Council  established  at 
Plymouth,  in  the  county  of  Devon,  for  the  planting,  ruling 
and  governing  of  New  England  in  America,  and  unto  their 
successors,  forever,  all  the  aforesaid  lands  and  grounds,  con- 
tinent, precincts,  place,  places  and  territories  (viz.  :),  the 
22 


338 


JUDICIAL  HISTORY 


aforesaid  part  of  America,  lying  and  being  in  breadth  from 
forty  degrees  of  northerly  latitude  from  the  equinoctial  line  to 
forty-eight  degrees  of  the  said  northerly  latitude,  inclusively, 
and  in  length  of  and  within  all  the  breadth  aforesaid  through- 
out the  main  land  from  sea  to  sea,  together,  also,  with  all 
the  firm  land,  soils,  ground,  havens,  ports,  rivers,  waters, 
fishings,  mines  and  minerals,  as  well  royal  mines  of  gold  and 
silver  as  other  mines  and  minerals,  precious  stones,  quarries 
and  all  and  singular  other  commodities,  jurisdictions,  royal- 
ties, privileges,  franchises  and  pre-eminences,  both  within 
the  said  tract  of  land  upon  the  main  and  also  within  the  said 
island  and  seas  adjoining. 

"Provided  always,  that  the  said  islands,  or  any  of  the 
premises  herein  before  mentioned,  and  by  these  presents, 
intended  and  meant  to  be  granted,  be  not  actually  possessed 
or  inhabited  by  any  other  Christian  prince  or  state,  nor  be 
within  the  bounds,  limits  or  territories  of  that  southern  colony, 
heretofore,  by  us,  granted  to  be  planted  by  divers  of  our 
loving  subjects  in  the  south  parts. 

"  To  have  and  to  hold,  possess  and  enjoy,  all  and  singular, 
the  aforesaid  continent,  lands,  territories,  islands,  heredita- 
ments and  precincts,  sea,  waters,  fishings,  wTith  all  and  all 
manner  their  commodities,  royalties,  liberties,  pre-eminences 
and  profits  that  shall  arise  from  thence,  with  all  and  singular 
their  appurtenances  and  every  part  and  parcel  thereof,  and 
of  them  to  and  unto  the  said  council  and  their  successors  and 
assigns,  forever,  to  the  sole,  only  and  proper  use,  benefit 
and  behoof  of  them,  the  said  council  and  their  successors 
and  assigns,  forever  to  be  holden  of  us,  our  heirs  and  suc- 
cessors, as  of  our  manor  of  East  Greenwich,  in  our  county 
of  Kent,  in  free  and  common  socage  and  not  in  capite,  nor 
by  knights'  services. 

"  Yielding  and  paying,  therefor,  to  us,  our  heirs  and  suc- 
cessors, the  fifth  part  of  the  ores  of  gold  and  silver  which,  from 
time  to  time,  and  at  all  times  hereafter,  shall  happen  to  be 
found,  gotten  and  obtained  in,  at  or  within  any  the  said 
lands,  limits,  territories  and  precincts,  or  in  or  within  any 


OF  MASSACHUSETTS. 


339 


part  or  parcel  thereof,  for  or  in  respect  of  all  and  all  manner 
of  duties,  demands  and  services  whatsoever,  to  be  done,  made 
or  paid  to  us,  our  heirs  and  successors. 

"And  we  do  further,  of  our  special  grace,  certain  knowl- 
edge and  mere  motion,  for  us,  our  heirs  and  successors,  give 
and  grant  to  the  said  council  and  their  successors,  forever, 
by  these  presents,  that  it  shall  be  lawful  and  free  for  them 
and  their  assigns,  at  all  and  every  time  and  times  hereafter, 
out  of  any  our  realm  or  domiuions  whatsoever,  to  take,  lead, 
carry  and  transport  in  and  into  their  voyages,  and  for  and 
towards  the  said  plantation  in  New  England,  aU  such  and  so 
many  of  our  loving  subjects,  or  any  other  strangers  that  will 
become  our  loving  subjects  and  live  under  our  allegiance,  or 
shall  willingly  accompany  them  in  the  said  voyage  and  planta- 
tion with  shipping,  armor,  weapons,  ordinances,  munition, 
powder,  shot,  victuals  and  all  manner  of  clothing,  imple- 
ments, furniture,  beasts,  cattle,  horses,  mares  and  all  other 
things  necessary  for  the  said  plantation  and  for  their  use  and 
defence  and  for  trade  with  the  people  there,  and  in  passing 
and  returning  to  and  fro  without  paying  or  yielding  any 
custom  or  subsidy,  either  inwards  or  outwards,  to  us,  our 
heirs  or  successors  for  the  same,  for  the  space  of  seven  years 
from  the  day  of  the  date  of  these  presents. 

"  Provided,  that  none  of  the  said  persons  be  such  as  shall 
be  hereafter,  by  special  name,  restrained  by  us,  our  heirs  or 
successors. 

"  And,  for  their  further  encouragement  of  our  special 
grace  and  favor,  we  do,  by  these  presents,  for  us,  our  heirs 
and  successors,  yield  and  grant  to  and  with  the  said  council, 
and  their  successors,  and  evei'y  of  them,  their  factors  aud 
assigns,  that  they  and  every  of  them  shall  be  free  and  quiet 
from  all  subsidies  and  customs  in  New  England  for  the  space 
of  seven  years,  and  from  all  taxes  and  importations  for  the 
space  of  twenty  and  one  years,  upon  all  goods  or  merchan- 
dise, at  any  time  or  times  hereafter,  either  upon  importation 
thither  or  exportation  from  thence  into  our  realm  of  England, 
or  into  any  other  our  dominions  by  the  said  council  and  their 


MO 


JUDICIAL  HISTOEY 


successors,  their  deputies,  factors  and  assigns,  or  any  of 
them,  except  only  the  five  pounds  per  cent,  due  for  custom 
upon  all  such  goods  and  merchandises,  as  shall  be  brought 
or  imported  into  our  realm  of  England  or  any  other  of  our 
dominions,  according  to  the  ancient  trade  of  merchants; 
which  five  pounds  per  centum  only  being  paid,  it  shall  be 
thenceforth  lawful  and  free  for  the  said  adventurers,  the  same 
goods  and  merchandise,  to  export  and  carry  out  of  our  said 
dominions  into  foreign  parts,  without  any  custom,  tax  or 
other  duty,  to  be  paid  to  us,  our  heirs  and  successors.  Pro- 
vided that  the  said  goods  and  merchandises  be  shipped  out 
within  thirteen  months  after  their  first  landing,  within  any 
part  of  these  dominions. 

"And  further,  our  will  and  pleasure  is,  and  we  do,  by 
these  presents,  charge,  command,  warrant  and  authorize  the 
said  council  and  their  successors,  or  the  major  part  of  them, 
which  shall  be  present  and  assembled  for  that  purpose,  shall 
from  time  to  time,  under  their  common  seal,  distribute,  convey, 
assign  and  set  over  such  particular  portions  of  lands,  tene- 
ments and  hereditaments  as  are,  by  these  presents,  formerly 
granted  unto  each  our  loving  subjects,  naturally  born,  or 
denisens,  or  others,  as  well  adventurers  or  planters,  as  by  the 
said  company,  upon  a  commission  of  survey  and  distribution, 
executed  and  returned  for  that  purpose,  shall  be  named,  ap- 
pointed and  allowed,  wherein  our  will  and  pleasure  is  that 
respect  be  had,  as  well  to  the  proportion  of  the  adventurers  as 
to  the  special  service,  hasard,  exploit  or  merit  of  any  person 
so  to  be  recompensed,  advanced  or  rewarded. 

"And  we  do  also,  for  us,  our  heirs  and  successors,  grant 
to  the  said  council  and  their  successors,  and  to  all  and  every 
such  governors,  or  other  officers  or  ministers  as  by  the  said 
council  shall  be  appointed,  to  have  power  and  authority  of 
government  and  command  in  or  over  the  said  colony  and 
plantation,  that  they,  and  every  of  them,  shall,  and  lawfully 
may,  from  time  to  time,  and  at  all  times  hereafter,  forever,  for 
their  several  defence  and  safety,  encounter,  expulse,  repel 
and  resist  by  force  of  arms,  as  well  by  sea  as  by  land,  and 


OF  MASSACHUSETTS. 


341 


all  means  and  ways  whatsoever,  all  such  person  and  persons 
as,  without  the  special  license  of  the  said  council  and  their 
successors,  or  the  greater  part  of  them,  shall  attempt  to  in- 
habit within  the  said  several  precincts  and  limits  of  the  said 
colony  and  plantation. 

"  And  also,  all  and  every  such  person  and  persons  whatso- 
ever as  shall  enterprise  or  attempt,  at  any  time  hereafter, 
destruction,  invasion,  detriment  or  annoyance  to  the  said 
colony  and  plantation. 

"  And  that  it  shall  be  lawful  for  the  said  council  and  their 
successors,  and  every  of  them,  from  time  to  time,  and  at  all 
times  hereafter,  and  they  shall  have  full  power  and  authority 
to  take  and  suppress,  by  all  ways  and  means  whatsoever,  all 
and  every  such  person  or  persons  whatsoever,  with  the  ships, 
goods  and  other  furniture,  trafficking  in  any  harbor,  creek  or 
place  within  the  limits  and  precincts  of  the  said  colony  and 
plantation,  and  not  being  allowed  by  the  said  council  to  be 
adventurers  or  planters  of  the  said  colon}7. 

"And  of  our  further  royal  favor,  we  have  granted,  and 
for  us,  our  heirs  and  successors,  we  do  grant  unto  the  said 
council  and  their  successors,  that  the  said  territories,  lands, 
rivers  and  places  aforesaid,  or  any  of  them,  shall  not  be  vis- 
ited, frequented  or  traded  into  by  any  other  of  our  subjects, 
or  the  subjects  of  us,  our  heirs  and  successors,  either  from 
any  of  the  ports  and  havens  belonging  or  appertaining  or 
which  shall  belong  or  appertain  unto  us.  our  heirs  or  success- 
ors, or  to  any  foreign  prince,  state  or  potentate  whatsoever. 

"  And  therefore,  we  do  hereby,  for  us,  our  heirs  and  suc- 
cessors, charge,  command,  prohibit  and  forbid  all  the  sub- 
jects of  us,  our  heirs  and  successors,  of  what  degree  or  qual- 
ity soever  they  be,  that  none  of  them,  directly  or  indirectly, 
presume  to  visit,  frequent,  trade  or  adventure  to  traffic  into 
or  from  the  said  territories,  lands,  rivers  and  places  afore- 
said, or  any  of  them,  other  than  the  said  council  and  then- 
successors,  factors,  deputies  and  assigns,  unless  it  be  with 
the  license  and  consent  of  the  said  council  and  company, 
first  had  and  obtained  in  writing,  under  the  common  seal, 


342 


JUDICIAL  HISTORY 


upon  pain  of  our  indignation  and  imprisonment  of  their 
bodies  during  the  pleasure  of  us,  our  heirs  or  successors, 
and  the  forfeiture  and  loss,  both  of  their  ship  and  goods, 
wheresoever  they  shall  be  found,  either  within  any  of  our 
kingdoms  or  dominions,  or  any  of  the  place  or  places  out  of 
our  dominion,  and  for  the  better  effecting  of  our  said  pleas- 
ure herein,  we  do  hereby,  for  us,  our  heirs  and  successors, 
give  and  grant  full  power  and  authority  unto  the  said  coun- 
cil and  their  successors,  for  the  time  being,  that  they  by 
themselves,  their  factors,  deputies  or  assigns,  shall  and  may, 
from  time  to  time,  and  at  all  times  hereafter,  attach,  arrest, 
take  and  seize  all  and  all  manner  of  ships,  goods,  wares  and 
merchandise  whatsoever,  which  shall  be  brought  from  or  car- 
ried to  the  places  before  mentioned,  or  any  of  them,  contrary 
to  our  own  will  and  pleasure,  before  in  these  presents  ex- 
pressed, the  moiety  or  one-half  of  all  which  forfeitures,  we 
do  hereby,  for  us,  our  heirs  and  successors,  give  and  grant 
unto  the  said  council  and  their  successors,  to  their  own  proper 
use,  without  accompt,  and  the  other  moiety,  or  half  part 
thereof,  we  will,  shall  be  and  remain  to  the  use  of  us,  our 
heirs  and  successors. 

"  And  we  likewise  have  condescended  and  granted,  and,  by 
these  presents,  for  us,  our  heirs  and  successors,  do  conde- 
scend and  grant  to  and  with  the  said  council  and  their  suc- 
cessors, that  we,  our  heirs  or  successors,  shall  not,  or  will 
not,  give  and  grant  liberty,  license  or  authority  to  any  per- 
son or  persons  whatsoever,  to  sail,  trade  or  traffic  unto  the 
aforesaid  plantations  of  New  England,  without  the  good  will 
and  liking  of  the  said  council,  or  the  greater  part  of  them  for 
the  time  being,  at  any  their  courts  to  be  assembled. 

"And  we  do,  for  us,  our  heirs  and  successors,  give  and 
grant  unto  the  said  council,  and  their  successors,  that  when- 
soever or  so  often  as  any  custom  or  subsidy  shall  grow  due 
or  payable  unto  us,  our  heirs  or  successors,  according  to  the 
limitation  and  appointment  aforesaid,  by  reason  of  any  goods, 
wares  or  merchandise,  to  be  shipped  out,  or  any  return  to  be 
made  of  any  goods,  wares  or  merchandise,  unto  or  from  New 


OF  MASSACHUSETTS. 


343 


England,  or  any  the  lands  or  territories  aforesaid,  that  then 
so  often,  and  in  such  case,  the  farmers,  customers  and  offi- 
cers of  our  customs  of  England  and  Ireland,  and  every  of 
them,  for  the  tune  being,  upon  request  made  unto  them  by 
the  said  council,  their  successors,  factors  or  assigns,  and 
upon  convenient  security  to  be  given  in  that  behalf,  shall  give 
and  allow  unto  the  said  council  and  their  successors,  and  to 
all  person  and  persons  free  of  the  said  company  as  aforesaid, 
six  months'  time  for  the  payment  of  the  one-half  of  all  such 
customs  and  subsidy  as  shall  be  due  and  payable  unto  us,  our 
heirs  and  successors,  for  the  same,  for  which  these,  our  let- 
ters patents  or  the  duplicate,  or  the  enrolment  thereof,  shall 
be  unto  our  said  officers  a  sufficient  warrant  and  discharge. 

Nevertheless,  our  will  and  pleasure  is,  that  if  any  of  the 
said  goods,  wares  and  merchandises,  which  be,  or  shall  be  at 
any  time  hereafter,  landed  and  exported  out  of  any  our  realms 
aforesaid,  and  shall  be  shipped  with  a  purpose  not  to  be  car- 
ried to  New  Kngland  aforesaid,  that  then  such  payment, 
duty,  custom,  importation  or  forfeiture  shall  be  paid  and 
belong  to  us,  our  heirs  and  successors,  for  the  said  goods, 
wares  and  merchandises  so  fraudulently  sought  to  be  trans- 
ported, as  if  this  our  grant  had  not  been  made  nor  granted. 

"  And  we  do,  for  us,  our  heirs  and  successors,  give  and 
grant  unto  the  said  council  and  their  successors  forever,  by 
these  presents,  that  the  said  president  of  the  said  company, 
or  his  deputy,  for  the  time  being,  or  any  two  others  of  the 
said  councel  for  the  said  colony  in  New  England,  for  the 
time  being,  shall  and  may,  at  all  times  hereafter,  and  from 
time  to  time,  have  full  power  and  authority  to  minister  and 
give  the  oath  and  oaths  of  allegiance  and  supremacy,  or 
either  of  them,  to  all  and  every  person  and  persons  which 
shall,  at  any  time  and  times  hereafter,  go  and  pass  to  the 
said  colony  of  New  England. 

"  And  further,  that  it  shall  be  likewise  lawful  for  the  said 
president,  or  his  deputy  for  the  time  being,  or  any  two  others 
of  the  said  council  for  the  said  colony  in  New  England,  for 
the  time  being,  from  time  to  time,  and  at  all  times  hereafter, 


344 


OF.  MASSACHUSETTS. 


to  minister  such  a  formal  oath,  as  by  their  discretions  shall 
be  reasonably  derived,  as  well  unto  any  person  or  persons 
employed,  or  to  be  employed  in,  for  or  touching  the  said 
plantation,  for  the  honest,  faithful  and  just  discharge  of  their 
service  in  all  such  matters  as  shall  be  committed  unto  them, 
for  the  good  and  benefit  of  the  said  company,  colony  and 
plantation,  as  also  unto  such  other  person  or  persons  as  the 
said  president  or  his  deputy,  with  two  others  of  the  said 
council,  shall  think  meet  for  the  examination  or  clearing  of 
the  truth,  in  any  case  whatsoever  concerning  the  said  planta- 
tion, or  any  business  from  thence  proceeding  or  thereunto 
belonging. 

1 '  And  to  the  end  that  no  lewd  or  ill-clisposed  persons, 
sailors,  soldiers,  artificers,  husbandmen,  laborers  or  others 
which  shall  receive  wares,  apparel  or  other  entertainment 
from  the  said  council,  or  contract  and  agree  with  the  said 
council  to  go  and  to  serve  and  to  be  employed  in  the  said 
plantation  in  the  colony  in  New  England,  do  afterwards 
withdraw,  hide  and  conceal  themselves,  or  refuse  to  go  thither 
after  they  have  been  so  entertained  and  agreed  withal,  and 
that  no  persons  which  shall  be  sent  and  employed  in  the  said 
plantation  of  the  said  colony  in  New  England,  upon  the 
charge  of  the  said  council,  do  misbehave  themselves  by  mu- 
tinous, seditious  or  other  notorious  misdemeanors,  or  which 
shall  he  employed  or  sent  abroad  by  the  Governor  of  New 
England,  or  his  deputy,  with  any  ship  or  pinnace,  for  provi- 
sion of  the  said  colony,  or  for  some  discovery,  or  other  busi- 
ness and  affairs  concerning  the  same,  do  from  thence  treach- 
erously either  come  back  again,  or  return  into  the  realm  of 
England  by  stealth,  or  without  license  of  the  Governor  of 
the  said  colony  in  INpw  England  for  the  time  being,  or  be 
sent  thither  as  misdoers,  or  offenders  and  that  none  of  those 
persons,  after  their  return  from  thence,  being  questioned  by 
the  said  council  here  for  such  their  misbehaviors  and  of- 
fences, do,  by  insolent  and  contemptuous  carriage,  in  the 
presence  of  the  said  council,  show  little  respect  and  rever- 
ence, either  to  the  place  or  authority  in  which  we  have  placed 


JUDICIAL  HISTORY 


345 


and  appointed  them  and  others  for  the  clearing  of  their  lewd- 
ness and  misdemeanors  committed  in  New  England,  divulge 
vile  and  slanderous  reports  of  the  country  of  New  Kngland, 
or  of  the  government  or  state  of  the  said  plantation  and  col- 
ony, to  bring  the  said  voyagers  and  plantation  into  disgrace 
and  contempt,  by  means  whereof  not  only  the  adventurers 
and  planters  already  engaged  in  the  said  plantation  may  be 
exceedingly  abused  and  hindered,  and  a  great  number  of  our 
loving  and  well-disposed  subjects,  otherwise  well  affected  and 
induced  to  join  and  adventure  in  so  noble  a  Christian  and 
worthy  an  action,  may  be  discouraged  from  the  same,  but  also 
the  enterprise  itself,  may  be  overthrown,  which  cannot  mis- 
carry without  dishonor  to  us  and  our  kingdom. 

"  We,  therefore,  for  preventing  of  so  great  and  enormous 
abuses  and  misdemeanors,  do,  by  these  presents,  for  us,  our 
heirs  and  successors,  give  and  grant  unto  the  said  president  or 
his  deputy,  or  such  other  person  or  persons  as,  by  the  orders 
of  the  said  council,  shall  be  appointed  by  warrant  under  his  or 
their  hand  or  hands,  to  send  for  or  cause  to  be  apprehended, 
all  and  every  such  person  and  persons  who  shall  be  noted,  or 
accused,  or  found  at  any  time  or  times  hereafter  to  offend  or 
misbehave  themselves  in  any  the  affairs  before  mentioned  and 
expressed,  and,  upon  the  exoneration  of  auy  such  offender 
or  offenders,  and  just  proof  made  by  oath,  taken  before  the 
said  council,  of  any  such  notorious  misdemeanors  by  them  to 
be  committed,  as  aforesaid,  and  also  upon  any  insolent,  con- 
temptuous or  unreverent  carriage,  or  misbehavior,  to  or 
against  the  said  council,  to  be  showed  or  used  by  such  per- 
son or  persons  so  called,  convinced  and  appearing  before 
them,  as  aforesaid,  that  in  all  such  cases  our  said  council,  or 
any  two  or  more  of  them,  for  the  time  being,  shall  and  may 
have  full  power  and  authority  either  here  to  bind  them  over 
with  good  security  for  their  good  behaviour,  and  further 
therein  to  proceed,  to  all  intents  and  purposes,  as  it  is  used 
in  other  like  cases  within  our  realm  of  England,  of  else,  at 
their  discretions,  to  remand  and  send  back  the  said  offenders, 


346 


JUDICIAL  HISTORY 


or  any  of  them,  to  the  said  colony  of  New  England,  there  to 
be  proceeded  against  and  punished  as  the  Governor,  deputy 
or  council  there,  for  the  time  being,  shall  think  meet,  or  other- 
wise, according  to  such  laws  and  ordinances  as  are,  and  shall 
be,  in  use  there  for  the  well  ordering  and  good  government 
of  the  said  colony. 

"And  our  will  and  pleasure  is,  and  we  do  hereby  declare 
to  all  Christian  kings,  princes  and  states  that  if  any  person 
or  persons  which  shall  hereafter  be  of  the  said  colony  or 
plantation,  or  any  other,  by  license  or  appointment  of  the 
said  council,  or  their  successors,  or  otherwise,  shall,  at  any 
time  or  times  hereafter,  rob,  or  spoil,  by  sea  or  by  land,  or  do 
any  hurt,  violence  or  unlawful  hostility  to  any  of  the  subjects 
of  us,  our  heirs  or  successors,  or  any  of  the  subjects  of  any 
king,  prince,  ruler,  or  governor,  or  state,  being  then  in  league 
and  amity  with  us,  our  heirs  and  successors,  and  that  upon 
such  injury,  or  upon  just  complaint  of  such  prince,  ruler, 
governor  or  state,  or  their  subjects,  we,  our  heirs  or  suc- 
cessors, shall  make  open  proclamation  within  any  of  the  parts 
of  our  realm  of  England,  commodious  for  that  purpose,  that 
the  person  or  persons  having  committed  any  such  robbery  or 
spoil  shall,  within  the  time  limited  by  such  a  proclamation, 
make  full  restitution  or  satisfaction  of  all  such  injuries  done, 
so  as  the  said  princes,  or  others,  so  complaining,  may  hold 
themselves  fully  satisfied  and  contented  ;  and  if  that  the  same 
person  or  persons,  having  committed  such  robbery  or  spoil, 
shall  not  make,  or  cause  to  be  made,  satisfaction  accordingly, 
within  such  time  so  to  be  limited,  that  then  it  shall  be  lawful 
for  us,  our  heirs  and  successors,  to  put  the  said  person  or 
persons  out  of  our  allegiance  and  protection,  and  that  it  shall 
be  lawful  and  free  for  all  princes  to  prosecute  with  hostility 
the  said  offenders,  and  every  of  them,  their  and  every  of  their 
procurers,  aiders,  abettors  and  comforters  in  that  behalf. 

"  Also,  we  do,  for  us,  our  heirs  and  successors,  declare  by 
these  presents,  that  all  and  every  the  persons  being  our  sub- 
jects, which  shall  go  and  inhabit  within  the  said  colony  and 


OF  MASSACHUSETTS. 


347 


plantation,  and  every  of  their  children  and  posterity  which 
shall  happen  to  be  born  within  the  limits  thereof,  shall  have 
and  enjoy  all  liberties  and  franchises  and  immunities  of  free 
denisens  and  natural  subjects,  with  any  of  our  other  domin- 
ions, to  all  intents  and  purposes,  as  if  they  had  been  abiding 
and  born  within  this  our  kindom  of  England,  or  any  other 
our  dominions. 

"And  lastly,  because  the  principal  effect  which  we  can 
desire  or  expect  of  this  action  is  the  conversion  of  and  reduc- 
tion of  the  people  in  those  parts  unto  the  true  worship  of 
God  and  Christian  religion,  in  which  respect  we  would  be 
loth  that  any  person  should  be  permitted  to  pass  that  we  sus- 
pected to  affect  the  superstition  of  the  church  of  Rome,  we 
do  hereby  declare  that  it  is  our  will  and  pleasure  that  none 
be  permitted  to  pass  in  any  voyage,  from  time  to  time  to  be 
made  into  the  said  country,  but  such  as  shall  first  have  taken 
the  oath  of  Supremacy,  for  which  purpose  we  do,  by  these 
presents  give  full  power  and  authority  to  the  president  of  the 
said  council  to  tender  and  exhibit  the  said  oath  to  all  such 
persons  as  shall  at  any  time  be  sent  and  employed  in  the  said 
voyage. 

"And  we  also  for  us,  our  heirs  and  successors  do  cove- 
nant and  grant  to  and  with  the  council  and  their  succes- 
sors by  these  presents,  that  if  the  council  for  the  time  be- 
ing, and  their  successors  or  any  of  them,  shall  at  any  time 
or  times  hereafter,  upon  any  doubt  which  they  shall  conceive 
concerning  the  strength  or  validity  in  law  of  this  our  present 
grant  or  be  desirous  to  have  the  same  renewed  and  confirmed 
by  us  our  heirs  and  successors,  with  amendments  of  such  im- 
perfections and  defects  as  shall  appear  fit  and  necessary  to  the 
said  council  or  their  successors  to  be  reformed  and  amended, 
on  the  behalf  of  us,  our  heirs  and  successors,  and  for  the 
furthering  of  the  plantation  and  government,  or  the  increase, 
continuing  and  flourishing  thereof,  that  then,  upon  the  humble 
petition  of  the  said  council,  for  the  time  being  and  their  suc- 
cessors, shall  and  will  forthwith,  make  and  pass  under  the 


348 


JUDICIAL  HISTORY 


great  seal  of  England,  to  the  said  council  and  their  succes- 
sors, such  further  and  better  assurance  of  all  and  singular 
the  lands,  grounds,  royalties,  privileges  and  powers  aforesaid 
granted  or  intended  to  be  granted,  according  to  our  true 
intent  and  meaning,  and  these  our  letters  patents,  signified, 
declared  or  mentioned,  as  by  the  learned  council  of  us,  our 
heirs  and  successors,  and  of  the  said  company  and  their  suc- 
cessors, shall,  in  that  behalf,  be  reasonably  devised  or 
advised. 

"And  further,  our  will  and  pleasure  is,  that  in  all  ques- 
tions and  doubts,  that  shall  arise  upon  any  difficulty  of  con- 
struction or  interpretation  of  anything  contained  in  these 
letters  patents,  the  same  shall  be  taken  and  interpreted  in 
most  ample  and  beneficial  manner,  for  the  said  council  and 
then-  successors,  and  every  member  thereof. 

"  And  we  do  further,  for  us,  our  heirs  and  successors, 
charge  and  command  all  and  singular  admirals,  vice  admi- 
rals, generals,  commanders,  captains,  justices  of  peace, 
mayors,  sheriffs,  bailiffs,  constables,  customers,  comptrollers, 
waiters,  searchers  and  all  the  officers  of  us,  our  heirs  and  suc- 
cessors whatsoever  to  be,  from  time  to  time  and  all  times 
hereafter,  in  all  things  aiding,  helping  and  assisting  unto  the 
said  council  and  their  successors,  and  unto  every  of  them, 
upon  request  and  requests,  by  them  to  be  made,  in  all  matters 
and  things,  for  the  furtherance  and  accomplishment  of  all  or 
any  the  matters  and  things  by  us,  in  and  by  these  our  letters 
patents,  given,  granted  and  provided,  or  by  us  meant  or  in- 
tended to  be  given,  granted  and  provided,  as  they,  our  said 
officers  and  the  officers  of  us,  our  heirs  and  successors,  do 
tender  our  pleasure,  and  will  avoid  the  contrary  at  their 
perils. 

"And  also,  we  do,  by  these  presents,  ratify  and  confirm 
unto  the  said  council  and  their  successors  all  privileges,  fran- 
chises, liberties  and  immunities  granted  in  our  said  former 
letters  patents  and  not  in  these  our  letters  patents,  revoked, 
altered,  changed  or  abridged,  although  expressed  mentioned. 


OF  MASSACHUSETTS. 


349 


etc.  In  witness,  etc.,  witness  ourself  at  Westminster  the 
third  day  of  November  in  the  eighteenth  year  of  our  reign 
over  England,  etc. 

"Par  Breve  de  Privato  Segillo,  etc. 

' '  This  is  a  true  copy  from  the  original  record  remainiug  in 
the  Chapel  of  the  Rolls,  having  been  examiued. 

"  Hen  Rooke, 
"  Clerk  of  the  Rolls." 


JUDICIAL  HISTORY 


APPENDIX 
B. 

FIRST  PLYMOUTH  COLONY  PATENT. 


"This  Indenture  made  the  first  day  of  June,  1621,  And 
in  the  years  of  the  raigne  of  our  soveraigne  Lord  James  by 
the  grace  of  god  King  of  England  Scotland  Fraunce  and 
Ireland  defendor  of  the  faith  &c  That  is  to  say  of  England 
Fraunce  and  Ireland  the  nynetenth  and  of  Scotland  the  four 
and  fiftieth  Betwene  the  President  and  Counsell  of  New 
England  of  the  one  ptie  And  John  Peirce  Citisen  and  Cloth- 
worker  of  London  and  his  Associates  of  the  other  ptie  Wit- 
nesseth  that  whereas  the  said  John  Peirce  and  his  Associates 
have  already  transported  and  undertaken  to  transporte  at 
their  cost  and  charges  themselves  and  dyver's  pson's  into 
New  England  and  there  to  erect  and  build  a  Towne  and  set- 
tle dyvers  Inhabitants  for  the  advancement  of  the  generall 
plantacon  of  that  Country  of  New  England  now  the  Sayde 
President  and  Counsell  in  consideracon  thereof  and  for  the 
furtherance  of  the  said  plantacon  and  incoragement  of  the 
said  Undertakers  have  agreed  to  grant  assigne  allott  and 
appoynt  to  the  said  John  Peirce  and  his  associates  and  every 
of  them  his  and  their  heires  and  assignes  one  hundred  acres 
of  ground  for  evry  pson  so  to  be  transported  besides  dyvers 
pryviledges  Liberties  and  commodytees  hereafter  menconed, 
And  to  that  intent  they  have  granted  allotted  assigned  and 
confirmed  And  by  their  presents  doe  grant  allott  assign  and 
confirme  unto  the  said  John  Peirce  and  his  Associates  his 
and  their  heires  &  assignes  and  the  heires  &  assignes  of  evry 
of  them  sevrally  and  respectyvelle  one  hundred  sevrall  acres 
of  ground  in  New  England  for  evry  pson  so  transported  or 
to  be  transported  yf  the  said  John  Peirce  or  his  Associates 


OF  MASSACHUSETTS. 


351 


contynue  there  three  whole  yeers  either  at  one  or  severall 
tymes  or  dye  in  the  meane  season  after  he  or  they  are  shipped 
with  intent  there  to  inhabit.  The  same  land  to  be  taken  & 
chosen  by  them  their  deputies  or  assignes  in  any  place  or 
place  wheresoever  not  already  inhabited  by  any  English  and 
where  no  English  pson  or  psons  are  already  placed  or  settled 
or  have  by  order  of  said  President  and  Councell  made  choyce 
of  nor  within  Tenn  myles  of  the  same  unless  it  be  on  the  op- 
posite S}Tde  of  some  great  or  Navigable  Ryver  to  the  former 
particular  plantacon  together  with  the  one  half  of  the  Ryver 
or  Ryvers  that  is  to  say  to  the  middest  thereof  as  shall  ad- 
joyne  to  such  lands  as  they  shall  make  choyce  of  together 
with  all  such  Liberties  pryvileges  profitts  &  comodyties  as 
the  said  Land  and  Ryvers  which  they  shall  make  choyce  of 
shall  j'ield  together  with  free  libertie  to  fish  on  and  upon  the 
coast  of  New  England  and  in  all  havens  ports  and  creeks 
Thereunto  belonging  and  that  no  pson  or  psons  whatsoever 
shall  take  any  benefitt  or  libertie  of  or  to  any  of  the  grounds 
or  the  one  half  of  the  Ryvers  aforesaid  excepting  the  free 
use  of  highways  by  land  and  Navigable  Ryvers  but  that  the 
said  undertakers  and  planters  their  heires  and  assignes  shall 
have  the  sole  right  and  use  of  the  said  grounds  and  the 
one  half  of  the  said  Ryvers  with  all  their  profitts  and  appur- 
tenances. And  for  as  much  as  the  said  John  Peirce  and  his 
associates  intend  and  have  undertaken  to  build  Churches, 
Schooles,  Hospitalls  Town  Houses,  Bridges  and  such  like 
Workes  of  charytie.  As  also  for  the  maynteyning  of  Mag- 
istrates and  other  inferior  officers  in  regard  whereof  and  to 
the  end  that  the  said  John  Peirce  and  his  Associates  his  and 
their  heires  and  assignes  may  have  wherewithall  to  beare  & 
support  such  like  charges  Therefore  the  said  President  and 
Councill  aforesaid  do  graunt  unto  the  said  Undertakers  their 
heirs  &  assignes  Fifteene  hundred  acres  of  Land  moreover 
and  above  the  aforesaid  possescon  of  one  hundred  the  pson 
for  evry  Undertaker  and  planter  to  be  ymployed  upon  such 
public  usis  as  the  said  Undertakers  &  Planters  shall  thinck 
fitt,  And  they  do  further  graunt  unto  the  said  John  Peirce 


352 


JUDICIAL  HISTORY 


and  his  Associates  their  heires  and  assigns  that  for  evry  pson 
that  they  or  any  of  them  shall  transport  at  their  owne  proper 
costs  &  charges  into  New  England  either  unto  the  Lands 
hereby  graunted  or  adjoyninge  to  them  within  seaven  j7ears 
after  the  feast  of  St.  John  Baptist  next  comeing  yf  the  said 
pson  transported  contynue  there  three  whole  years  either  at 
one  or  severall  tymes  or  dye  in  the  meane  seasin  after  he  is 
shipped  with  intent  there  to  inhabit  that  the  said  pson  or 
psons  that  shall  so  at  his  or  their  owne  charges  transport  any 
other  shall  have  graunted  and  allowed  to  him  and  them  and 
his  &  their  heirs  respectyvelie  for  evry  pson  so  transported 
or  dyeing  after  he  is  shipped  one  hundred  acres  of  Land  and 
also  that  evry  pson  or  psons  who  by  contract  &  agreament 
to  be  had  &  made  with  the  said  Undertakers  shall  at  his  or 
their  own  charge  transport  him  &  themselves  or  any  others 
and  setle  aud  plant  themselves  in  New  England  within  the 
said  seaven  yeeres  for  three  yeeres  space  as  aforesaid  or  dye 
in  the  meane  tyme  shall  have  graunted  &  allowed  unto  evry 
pson  so  transporting  or  transported  and  their  heires  and  as- 
signes  respectyvelie  the  lik  number  of  one  hundred  acres  of 
Land  as  aforesaid  the  same  to  be  by  him  &  them  or  their 
heires  or  assignes  chosen  in  any  entyre  place  together  and 
adjoyning  to  the  aforesaid  Lands  and  not  straglingly  not 
before  the  tyme  of  such  choyce  made  possessed  or  inhabited 
by  any  English  Company  or  within  tenne  myles  of  the  same 
except  it  be  on  the  opposite  syde  of  some  great  Navigable 
Ryver  as  aforesaid.  Yielding  and  paying  unto  the  said 
President  and  Counsell  for  every  hundred  acres  so  obteyned 
and  possessed  by  the  said  John  Peirce  and  his  said  Associates 
and  by  those  said  other  psons  and  their  heires  &  assignes 
who  by  contract  as  aforesaid  shall  at  their  onne  charges 
transport  the.mselves  or  others  the  Yerely  rent  of  two  shil- 
lings at  the  feast  of  St.  Michael  Tharchaungell  to  the  hand 
of  the  Rent  gatherer  of  the  President  &  Counsell  and  their 
successors  forever  the  first  payment  to  begyn  after  the  xpe- 
racon  of  the  first  seaven  yeeres  next  after  the  date  hereof 
And  further  it  shall  be  lawful  to  and  for  the  said  John  Peirce 


OF  MASSACHUSETTS. 


353 


and  his  associates  and  such  as  contract  with  thern  as  afore- 
said their  Tennants  &  servants  upon  dislike  of  one  in  the 
country  to  returne  for  England  or  elsewhere  with  all  their 
goods  &  chattells  at  their  will  &  pleasure  without  lett  or  dis- 
turbance of  any  paying  all  debts  that  justly  shal  be  de- 
manded And  likewise  it  shall  be  lawful  and  is  granted  to 
and  for  the  said  John  Peirce  his  Associates  &  Planters  their 
heires  &  assignes  their  Tennants  &  servants  and  such  as 
they  or  any  of  them  shall  contract  with  as  aforesaid  and 
send  and  ymploy  for  the  said  plantacon  to  goe  &  returne 
trade  traffig  import  and  transport  their  goods  &  merchandise 
at  their  will  &  pleasure  into  England  or  elsewhere  paying 
only  such  duties  to  the  King's  majestie  his  heirs  &  successors 
as  the  President  &  Counsell  of  New  England  doe  pay  with- 
out any  other  taxes  imposicons  burthens  or  restraints  what- 
soever upon  them  to  be  ymposed  the  rent  hereby  reserved 
being  only  excepted.  And  it  shall  be  lawfull  for  the  said 
Undertakers  &  Planters  their  heires  &  successors  freely  to 
truck  trade  &  traffig  with  the  salvages  in  New  England  or 
neighboring  thereabouts  at  their  wills  and  pleasures  without 
lett  or  disturbance,  As  also  to  have  libertie  to  hunt  hauke 
fish  or  fowle  in  any  place  or  places  not  now  or  hereafter  by 
the  English  inhabited.  And  the  said  President  &  Counsell 
do  covenant  &  promyse  to  and  with  the  said  John  Peirce 
and  his  Associates  and  others  contracted  with  as  aforesaid 
his  and  their  heires  &  assignes.  That  upon  Lawfull  survey 
to  be  had  &  made  at  the  charge  of  the  said  Undertakers 
&  Planters  and  lawfull  informacon  given  of  the  bounds  meets 
and  quantytee  of  Land  so  as  aforesaid  to  be  by  them  chosen 
&  possessed  they  the  said  President  &  Counsell  upon  surren- 
der of  this  presente  graunt  and  Indenture  and  upon  reason- 
able request  to  be  made  by  the  said  Undertakers  &  Plant- 
ers their  heires  &  assignes  within  seaven  yeeres  now  next 
coming  shall  and  will  by  their  Deed  Indented  and  under  their 
Comon  Seale  graunt  enfeoffe  and  confirme  all  and  evry  the 
said  lands  so  sett  out  and  bordered  as  aforesaid  to  the  said 
John  Peirce  and  his  associates  and  such  as  contract  with 
23 


354 


JUDICIAL  HISTORY 


them  their  heirs  &  assignes  in  as  large  and  beneficeall  manner 
as  the  same  are  in  these  presence  graunted  or  intended  to 
be  graunted  to  all  intents  &  purposes  with  all  and  every 
particular  priviledge  &  freedome  reservaceon  &  condicon 
with  all  dependacis  herein  specyfiecl  &  graunted.  And  shall 
also  at  any  tyme  within  the  said  terme  of  Seaven  Yeeres 
upon  request  unto  the  said  President  &  Counsell  make  graunt 
unto  them  the  said  Johti  Peirce  and  his  Associates  Under- 
takers &  Planters  their  heires  &  assignes  Letters  &  Graunts 
of  Incorporacon  by  some  usual  and  fitt  name  &  tytle  with 
Liberty  to  them  and  their  successors  from  tyme  to  tyme  to 
make  orders  Lawes  ordynaunces  &  constitucons  for  the  rule 
government  ordering  &  dyrectory  of  all  psons  to  be  trans- 
ported &  settled  upon  the  lands  hereby  graunted  intended 
to  be  graunted  or  hereafter  to  be  graunted  and  of  the  said 
Lands  &  Proffitts  thereby  arrysing.  And  in  the  meane  tyme 
untill  such  graunt  made  yt  shal  be  lawfull  for  the  said  John 
Peirce  his  Associates  &  Undertakers  &  Planters  their  heirs 
&  assignes  by  consent  of  the  greater  part  of  them  To  estab- 
lish such  lawes  &  ordynauncis  as  are  for  their  better  govern- 
ment and  the  same  by  such  officer  or  officers  as  they  shall 
by  most  voyces  elect  &  choose  to  put  in  execucon.  And 
lastly  the  said  President  &  Counsell  do  graunt  and  agree  to 
and  with  the  said  John  Peirce  and  his  Associates  and  others 
contracted  with  and  ym ployed  as  aforesaid  their  heires  and 
assignes  That  when  they  have  planted  the  Lands  hereby  to 
them  assigned  &  appoynted  That  then  it  shal  be  lawfull  for 
them  with  the  pryvitie  &  allowance  of  the  President  &  Coun- 
sell as  aforesaid  to  make  choyce  of  to  enter  into  and  to  have 
an  addition  of  fiftee  acres  more  for  evry  pson  transported 
into  New  England  with  like  reservacons  conditions  and  privi- 
ledges  as  are  above  graunted  to  be  had  and  chosen  in  such 
place  or  places  where  no  Knglish  shal  be  then  settled  or  in- 
habiting or  have  made  choyce  of  and  the  same  entered  into 
a  Book  of  Acts  at  the  tyme  of  such  choyce  is  to  be  made  or 
within  tenne  miles  of  the  same  excepting  on  the  opposite 
syde  of  some  great  navigable  River  as  aforesaid.    And  it 


OF  MASSACHUSETTS. 


355 


shall  and  may  be  lawfull  for  the  said  John  Peirce  and  his 
Associates  their  heires  &  assigues  from  tyme  to  tyme  and  at 
all  tymes  hereafter  for  their  severall  defence  and  savetie  to 
encounter  repulse  repell  &  resist  by  force  of  Armes  as  well 
by  Sea  as  by  Land  and  by  all  wayes  and  meanes  whatsoever 
all  such  pson  and  psons  as  without  the  especiall  lycense  of 
the  said  President  or  Counsell  and  their  successors  or  the 
greater  part  of  them  shall  attempt  to  inhabit  within  the  sev- 
eral presencts  and  lymitts  of  their  said  Plantacon ;  or  shall 
enterpryse  or  attempt  at  any  time  hereaf  ler  destruccon  In- 
vation  detryment  or  annoyance  to  the  said  Plantacon.  And 
the  said  John  Peirce  and  his  Associates  and  their  heires  &  as- 
signes  do  covenant  &  promyse  to  &  with  the  said  President 
&  Counsell  and  their  successors  That  they  the  said  John 
Peirce  and  his  Associates  from  tyme  to  tyme  during  the  said 
Seaven  Yeeres  shall  make  a  true  Certificate  to  the  said  Presi- 
dent &  Counsell  and  their  successors  from  the  chief  officers 
of  the  places  respectyvely  of  evry  pson  transported  &  landed 
in  New  England  or  shipped  as  aforesaid  to  be  entered  by  the 
Secretary  of  the  said  President  &  Counsell  into  a  Register 
book  for  that  purpose  to  be  kept  And  the  said  John  Peirce 
and  his  Associates  jointly  and  severally  for  them  their  heires 
&  nssignes  do  covenant  promyse  &  graunt  to  and  with  the 
said  President  &  Counsell  and  their  successors  That  the  psons 
transported  to  this  their  particular  Plantacon  shall  apply 
themselves  &  their  Labors  in  a  large  &  competent  manner 
to  the  planting  setting  making  &  procuring  of  goods  &  staple 
commodyties  in  &  upon  the  said  Land  hereby  graunted  unto 
them  as  corne  &  silkgrane  hemp  flax  pitch  and  tarre  sope- 
ashes  and  potashes  yron  clapboard  and  other  like  materealls. 
In  Witness  whereof  the  said  President  &  Counsell  have  to 
the  one  part  of  the  present  Indenture  sett  their  seales.  And 
to  the  other  part  hereof  the  said  John  Peirce  in  the  name  of 
himself  and  his  said  Associates  have  sett  to  his  seale  given 
the  day  and  yeeres  first  above  written." 


356 


JUDICIAL  HISTORY 


APPENDIX 
C. 

SECOND  PLYMOUTH  COLONY  PATENT. 


"  To  all  to  whom  these  presents  shall  come,  greeting : 
"  Whereas  our  late  sovereign  lord  King  James  for  the  ad- 
vancement of  a  colony  and  plantation  in  the  country  called 
or  known  by  the  name  of  New  England,  in  America,  by  his 
highness  letters  patents  under  the  great  seal  of  England, 
bearing  elate  at  Westminster  the  third  day  of  November,  in 
the  eighteenth  year  of  his  highness  reign  of  England,  &c  did 
give,  grant  and  confirm  unto  the  right  honorable  Lodowicke, 
late  lord  duke  of  Lenox ;  George,  late  lord  marquis  of  Buck- 
ingham ;  James  marquis  Hamilton ;  Thomas  earl  of  Arundell ; 
Robert  earl  of  Warwick;  and  Ferdinand  Gorges  knight, 
and  divers  others  whose  names  are  expressed  in  the  said 
letters  patents,  and  their  successors,  that  they  should  be  one 
body  politic  and  corporate,  perpetually  consisting  of  forty 
persons  and  that  they  should  have  perpetual  succession  and 
one  common  seal  to  serve  for  the  said  body,  and  that  they 
and  their  successors  should  be  incorporated,  called  and  known 
by  the  name  of  the  council  established  at  Plymouth,  in  the 
County  of  Devon,  for  the  planting,  ruling,  ordering  and  gov- 
erning of  New  England  in  America,  and  also  of  his  special 
grace,  certain  knowledge  and  mere  motion,  did  give,  grant 
and  confirm  unto  the  .said  president  and  council  and  their 
successors,  forever,  under  the  reservations,  limitations  and 
declarations  in  said  letters  patents  expressed  all  that  part  and 
portion  of  the  said  country  now  called  New  England,  in 
America,  situate,  lying  and  being  in  breadth  from  forty 
degrees  of  northerly  latitude  from  the  equinoctial  line  to 
forty-eight  degrees  of  the  said  northerly  latitude  inclusively 


OF  MASSACHUSETTS. 


357 


and  in  length  of  and  in  all  the  breadth  aforesaid  throughout 
the  mainland  from  sea  to  sea,  together  also  with  all  the  farm 
lands,  soils,  grounds,  creeks,  inlets,  havens,  ports,  seas, 
rivers,  islands,  waters,  fishings,  mines  and  minerals,  precious 
stones,  quarries  and  all  and  singular,  the  commodities  juris- 
dictions, royalties,  privileges,  franchises  and  preliminaries, 
both  within  the  said  tract  of  land  upon  the  main  as  also 
within  the  said  islands  and  seas  adjoining:  To  have,  hold, 
possess  and  enjoy  all  and  singular  the  aforesaid  con- 
tinent, lands,  territories,  islands,  hereditaments  and  pre- 
cincts, sea  waters,  fishings  with  all  and  all  manner  their 
commodities,  royalties,  privileges,  preliminaries  and  profits 
that  shall  arise  from  thence  with  all  and  singular  their  ap- 
purtenances, and  every  part  and  parcel  thereof  unto  the  said 
council  and  their  successors  and  assigns  forever :  To  be 
holden  of  his  Majesty,  his  heirs  and  successors,  as  of  his 
manor  of  East  Greenwich,  in  the  County  of  Kent,  in  free  and 
common  socage  and  not  in  capite  nor  by  knights  service 
yielding  and  paying  therefor  to  the  said  late  King's  majesty 
his  heirs  and  successors,  the  fifth  part  of  the  ore  of  gold  and 
silver  which  from  time  to  time  and  at  all  times  from  the  date 
of  the  said  letters  patents  shall  be  there  gotten,  had  and 
obtained  for  and  in  respect  of  all  and  all  manner  of  duties, 
demands  and  services  whatsoever  to  be  done,  made  and  paid 
unto  his  said  late  Majesty,  his  heirs  and  successors,  as  in  and 
by  the  said  letters  patents  amongst  sundry  other  privileges 
and  matters  therein  contained  more  fully  and  at  large,  it 
doth  and  may  appear.  Now  know  ye  that  the  said  council 
by  virtue  and  authority  of  his  said  late  Majestie's  letters 
patents,  and  for  and  in  consideration  that  William  Bradford 
and  his  associates  have  for  these  nine  years  lived  in  New 
England  aforesaid,  and  have  there  inhabited  and  planted  a 
town  called  by  the  name  of  New  Plymouth,  at  their  own 
proper  costs  and  charges  :  And  now  seeing  that  by  the  special 
providence  of  God  and  their  extraordinary  care  and  industry 
they  have  increased  their  plantation  to  near  three  hundred 
people,  and  are  upon  all  occasions  able  to  relieve  any  new 


358 


JUDICIAL  HISTORY 


planters  or  others  his  Majestie's  subjects  who  may  fall  upon 
that  coast;  have  given,  granted,  bargained,  sold,  enfeoffed, 
allotted,  assigned  and  set  over,  and  by  these  presents  do 
clearly  and  absolutely  give,  grant,  bargain,  sell,  alien,  en- 
feoffe,  allot,  assign  and  confirm  unto  the  said  William  Brad- 
ford, his  heirs,  associates  and  assigns  all  that  part  of  New- 
England  in  America  aforesaid,  and  tract  and  tracts  of  land 
that  lie  within  or  between  a  certain  rivolet  or  rundlett  there 
commonly  called  Coahassitt,  alias  Conahasett  towards  the 
North,  and  the  river  commonly  called  Naragansets  river 
towards  the  South  ;  and  the  great  western  ocean  towards  the 
East  and  between  and  within  a  straight  line  directly  ex- 
tending up  into  the  main  land  towards  the  West  from  the 
mouth  of  the  said  river  called  Naragansetts  river  to  the 
utmost  limits  and  bounds  of  a  country  or  place  in  New 
England  called  Pokenacutt  alias  Sowamsett,  westward  and 
another  like  straight  line  extending  itself  directly  from  the 
mouth  of  the  said  river  called  Coahassett  alias  Conahassett, 
towards  the  West,  so  far  up  into  the  main  land  westwards  as 
the  utmost  limits  of  the  said  place  or  country  commonly 
called  Pokenacutt,  alias  Sowamsett  do  extend  together  with 
one  half  of  the  said  river  called  Naragansetts,  and  the  said 
rivolet  or  rundlett  called  Coahassett,  alias  Conahassett  and  all 
lands,  rivers,  waters,  havens,  creeks,  ports,  fishings,  fowlings 
and  all  hereditaments,  profits,  commodities  and  emoluments 
whatsoever  situate,  lying  and  being  or  arising  within  or  be- 
tween the  said  limits  and  bounds  or  any  of  them.  And  for  as 
much  as  they  have  no  convenient  place  either  of  trading  or 
fishing  within  their  own  precincts  whereby  (after  so  long  travel 
and  great  pains)  so  hopeful  a  plantation  may  subsist  as  also 
that  they  may  be  encouraged  the  better  to  proceed  in  so  pious 
a  work  which  may  especially  tend  to  the  propagation  of  reli- 
gion and  the  great  increase  of  trade  to  his  Majestie's  realms 
and  advancement  of  the  public  plantation.  The  said  council 
have  further  given,  granted,  bargained,  sold,  enfeoffed,  allot- 
ted, assigned  and  set  over  and  by  these  presents  do  clearly 
and  absolutely  give,  grant,  bargain,  sell,  alien,  enfeoffe,  allott, 


OF  MASSACHUSETTS. 


359 


assign  and  confirm  unto  said  William  Bradford,  his 
heirs,  associates  and  assigns  all  that  tract  of  land  within 
or  between  and  extencleth  itself  from  the  utmost  limit  of 
Cobbinsconte  alias  Comasee-conte  which  adjoineth  to  the 
river  of  Kenebeke  alias  Kenebekike,  towards  the  western 
ocean  and  a  place  called  the  falls  at  Megamkike  in  America 
aforesaid  and  the  space  of  fifteen  English  miles  on  each  side 
of  the  said  river  called  Kenebek,  that  lies  within  the  said 
limits  and  bounds  eastward,  westward,  northward  or  south- 
ward last  above  mentioned,  and  all  lands,  grounds,  soils, 
rivers,  waters,  fishings,  hereditaments  and  profits  whatsoever 
situate,  lying  and  being,  arising,  happening  or  accruing  or 
which  shall  arise,  happen  or  accrue  in  or  within  the  said 
limits  and  bounds  or  either  of  them  together  with  free  in- 
gress, egress  and  regress,  with  ships,  boats,  shallops  and 
other  vessels  from  the  sea  commonly  called  the  western  ocean 
to  the  said  river  called  Kennebek  and  from  the  said  river  to 
the  said  western  ocean  together  with  all  prerogative  rights, 
royalties,  jurisdictions,  privileges,  franchises,  liberties  and 
immunities  and  also  marine  liberty  with  the  escheats  and 
casualties  thereof,  the  Admiralty  Jurisdiction  excepted,  with 
all  the  interest,  right,  title,  claim  and  demand  whatsoever 
which  the  said  council  and  their  successors  now  have  or  ought 
to  have  and  claim  or  may  have  and  acquire  hereafter  in  or  to 
any  the  said  parcels  or  tracts  of  land  hereby  mentioned  to  be 
granted  or  any  the  premises  in  as  free,  large,  ample  and  bene- 
ficial manner  to  all  intents,  constructions  and  purposes  what- 
soever, as  the  said  council  by  virtue  of  his  Majestie's  said 
letters  patents  may  or  can  grant ;  to  have  and  to  hold  the 
said  tract  and  tracts  of  land  and  all  and  singular  the  prem- 
ises above  mentioned  to  be  granted  with  them  and  every  of 
their  appurtenances  to  the  said  William  Bradford,  his  heirs, 
associates  and  assigns  forever.  Yielding  and  paying  unto 
our  said  Sovereign  Lord  the  King,  his  heirs  and  successors 
forever,  one  fifth  part  of  the  ore  of  the  mines  of  gold  and  sil- 
ver and  one  other  fifth  part  thereof  to  the  president  and  coun- 
cil which  shall  be  had,  possessed  and  obtained  within  the  pre- 
cincts aforesaid,  for  all  services  and  demands  whatsoever. 


360 


JUDICIAL  HISTORY 


And  the  said  council  do  further  grant  and  agree  to  and  with 
the  said  William  Bradford  his  heirs,  associates  and  assigns 
and  every  of  them,  his  and  their  factors,  agents,  tenants  and 
servants  and  all  such  as  he  or  they  shall  send  and  employ 
about  his  particular  plantation  shall  and  may  from  time  to 
time  freely  and  lawfully  go  and  return,  trade  and  traffick  as 
well  with  the  English  as  any  of  the  natives  within  the  pre- 
cincts aforesaid,  with  liberty  of  fishing  upon  any  part  of  the 
sea  coast  and  sea  shores  of  any  of  the  seas  or  islands  adja- 
cent and  not  being  inhabited  or  otherwise  disposed  of,  by 
order  of  the  said  president  and  council ;  also  to  import,  ex- 
port and  transport  their  goods  and  merchandise  at  their  wills 
and  pleasures  paying  only  such  duty  to  the  King's  Majestie, 
his  heirs  and  successors  as  the  said  president  and  council  do 
or  ought  to  pay  without  any  other  taxes,  impositions,  burdens 
and  restraint  upon  them  to  be  imposed.  And  further  the 
said  council  do  grant  and  agree  to  and  with  the  said  William 
Bradford,  his  heirs,  associates  and  assigns  that  the  persons 
transported  by  him  or  any  of  them  shall  not  be  taken  away, 
employed  or  commanded  either  by  the  governor  for  the  time 
being  of  New  England  or  by  any  other  authority  there  from 
the  business  and  employment  of  the  said  William  Bradford 
and  his  associates,  his  heirs  and  assigns.  Necessary  defence  of 
the  country,  preservation  of  the  peace,  suppressing  of  tumults 
within  the  land,  trials  in  matters  of  justice  by  appeals  upon 
special  occasion  only  excepted.  Also  it  shall  be  lawful  and 
free  for  the  said  William  Bradford,  his  associates,  his  heirs 
and  assigns  at  all  times  hereafter  to  incorporate  by  some 
usual  or  fit  name  and  title  him  or  themselves  or  the  people 
there  inhabiting  under  him  or  them  with  liberty  to  them  and 
their  successors  from  time  to  time  to  frame  and  make  orders, 
ordinances  and  constitutions  as  well  for  the  better  govern- 
ment of  their  affairs  here  and  the  recovering  or  admitting 
any  to  his  or  their  society  as  also  for  the  better  government 
of  his  or  their  people  and  affairs  in  New  England  or  his  and 
their  people  at  sea  in  going  thither  or  returning  from  thence 
and  the  same  to  put  in  execution  or  cause  to  be  put  in  execu- 


OF  MASSACHUSETTS. 


361 


tion  by  such  officers  and  ministers  as  he  and  they  shall  au- 
thorize and  depute.  Provided  that  the  said  laws  and  orders 
be  not  repugnant  to  the  laws  of  England  or  the  frame  of 
government  by  the  said  president  and  council  hereafter  to  be 
established.  And  further  it  shall  be  lawful  and  free  for  the 
said  William  Bradford,  his  heirs,  associates  and  assigns  to 
transport  cattle  of  all  kinds ;  also  powder,  shot,  ordnance 
and  munition,  from  time  to  time  as  shall  be  necessary  for 
their  strength  and  safety  hereafter  for  their  several  defence  ; 
to  encounter,  expulse,  repel  and  resist  by  force  of  arms,  as 
well  by  sea  as  by  land  by  all  ways  and  means  whatsoever. 
And  by  virtue  of  the  authority  to  us  derived  by  his  late  Ma- 
jestie's  letters  patent  to  take,  apprehend,  seize  and  make  prise 
of  all  such  persons,  their  ships  and  goods  as  shall  attempt  to 
inhabit  or  trade  with  the  savage  people  of  that  country  with- 
in the  several  precincts  and  limits  of  his  and  their  several 
plantation  or  shall  interfere  or  attempt  at  any  time  destruc- 
tion, invasion,  detriment  or  annoyance  to  his  and  their  said 
plantation  ;  the  one  moiety  of  which  goods  so  seized  and  taken 
it  shall  be  lawful  for  the  said  William  Bradford,  his  heirs,  asso- 
ciates and  assigns  to  take  to  their  own  use  and  behoof ;  the 
other  moiety  thereof  to  be  delivered  by  the  said  William  Brad- 
ford, his  heirs,  associates  and  assigns  to  such  officer  and  offi- 
cers as  shall  be  appointed  to  receive  the  same  for  his  lUajestie's 
use.  And  the  said  council  do  hereby  covenant  and  declare 
that  it  is  their  intent  and  meaning  for  the  good  of  the  planta- 
tion that  the  said  William  Bradford,  his  associates,  his  or 
their  heirs  or  assigns,  shall  have  and  enjoy  whatsoever  priv- 
ilege or  privileges  of  what  kind  soever  as  are  expressed  or 
intended  to  be  granted  in  and  by  his  said  late  Majestie's  letters 
patent  and  that  in  as  large  and  ample  manner  as  the  council 
thereby  now  may  or  hereafter  can  grant,  coining  of  money 
excepted.  And  the  said  council  for  them  and  their  succes- 
sors do  covenant  and  grant  to  and  with  the  said  William 
Bradford,  his  heirs,  associates  and  assigns  by  these  present 
that  they,  the  said  council  shall  at  any  time  hereafter  upon 
request  at  the  only  proper  costs  and  charges  of  the  said  Wil- 


362 


JUDICIAL  HISTORY 


liam  Bradford,  his  heirs,  associates  and  assigns  do  make, 
suffer,  execute  and  willingly  convert  unto  any  further  act  or 
acts,  conveyance  or  conveyances,  assurance  or  assurances, 
whatsoever  for  the  good  and  perfect  investing,  assuring  and 
conveying  and  sure  making  of  all  the  aforesaid  tract  and  tracts 
of  land,  royalties,  mines,  minerals,  woods,  fishings  and  all 
singular  their  appurtenances  unto  the  said  William  Bradford 
his  heirs,  associates  and  assigns  as  by  him  or  them  or  his  or 
their  heirs  or  his  or  their  counsel,  learned  in  the  law,  shall  be 
devised,  advised  and  required.  And  lastly  know  ye  that  we 
the  said  council  have  made,  constituted,  deputed,  authorized 
and  appointed  Captain  Miles  Standish  or  in  his  absence  Ed- 
ward Winslow,  John  Howland  and  John  Alden  or  any  of 
them  to  be  our  true  and  lawful  attorney  and  attorneys  jointly 
and  severally  in  our  name  and  stead  to  enter  into  the  said 
tract  and  tracts  of  land  and  other  the  premises  with  their 
appurtenances  or  into  some  part  thereof  in  the  name  of  the 
whole  for  us  and  in  our  names  to  take  possession  and  seizin 
thereof  or  of  some  part  thereof  in  the  name  of  the  whole  had 
and  taken ;  then  for  us  and  in  our  names  to  deliver  the  full 
and  peaceable  possession  of  seizin  of  all  and  singular  the 
said  mentioned  to  be  granted  premises  unto  the  said  Wil- 
liam Bradford  his  heirs,  associates  and  assigns  or  to  his  or 
their  certain  attorney  or  attorneys  in  that  behalf,  ratifying, 
allowing  and  confirming  all,  whatsoever  our  said  attorney  do 
in  or  about  the  premises.  In  witness,  whereof,  the  said  coun- 
cil established  at  Plymouth  in  the  county  of  Devon  for  the 
planting,  ruling,  ordering  and  governing  of  New  England 
in  America  have  hereunto  put  their  seals  the  thirteenth  day 
of  January  in  the  fifth  year  of  the  reign  of  our  Sovereign 
Lord  Charles,  by  the  grace  of  God,  King  of  England,  Scot- 
land, France  and  Ireland,  defenders  of  the  faith  &c,  Anno 
Domi.  1629. 

[Seal]  "R.Warwick." 


OF  MASSACHUSETTS. 


363 


APPENDIX  • 

CHARTER  OF  THE  COLONY  OF  MASSACHUSETTS  BAT. 


"  Charles  by  the  Grace  of  God,  King  of  England,  Scotland 
and  Ireland,  Defender  of  the  Faith,  etc.  To  all  to  whom  these 
presents  shall  corne,  Greeting :  Whereas  our  most  dear  and 
royal  father  King  James  of  blessed  memory  by  his  Highness' 
letters  patents  bearing  date  at  Westminster,  the  third  day  of 
November,  in  the  eighteenth  year  of  his  reign  hath  given  and 
granted  unto  the  Council  established  at  Plymouth  in  the 
County  of  Devon  for  the  planting,  ruling,  ordering  and  gov- 
erning of  New  England  in  America,  and  to  their  successors 
and  assigns  forever,  all  that  part  of  America  lying  and  being 
in  breadth  from  forty  degrees  of  Northerly  latitude  from  the 
equinoctial  line  to  forty-eight  degrees  of  the  said  Northerly 
latitude  inclusively,  and  in  length  of  and  within  all  the 
breadth  aforesaid  throughout  the  main  lands  from  sea  to  sea, 
together  also  with  all  the  farm  lands,  soils,  grounds,  havens, 
ports,  rivers,  waters,  fisheries,  mines  and  minerals,  precious 
stones,  quarries  and  all  and  singular  other  commodities, 
jurisdictions,  royalties,  privileges,  franchises  and  pre-emi- 
nences, both  within  the  said  tract  of  land  upon  the  main  and 
also  within  the  islands  and  seas  adjoining :  Provided  always 
that  the  said  islands  or  any  the  premises  by  the  said  letters 
patents  intended  and  meant  to  be  granted,  were  not  then 
actually  possessed  or  inhabited  by  any  other  Christian  Prince 
or  state  nor  within  the  bounds,  limits  or  territories  of  the 
Southern  Colony  then  before  granted  by  our  said  dear  father 
to  be  planted  by  divers  of  his  loving  subjects  in  the  South 
parts.  To  have  and  to  hold,  possess  and  enjoy  all  and  singular 
the  aforesaid  continent,  lands,  territories,  islands,  heredita- 


364 


JUDICIAL  HISTOUY 


merit  sand  precincts,  seas,  waters,  fishings,  with  all  and  all 
manners,  their  commodities,  royalties,  liberties,  pre-emin- 
ences and  profits  that  should  from  thenceforth  arise  from 
thence  with  all  and  singular  their  appurtenances  and  every 
part  and  parcel  thereof  unto  the  said  Council  and  their  suc- 
cessors and  assigns  forever.  To  the  sole  and  proper  use, 
benefit  and  behoof  of  them  the  said  Council  and  their  suc- 
cessors and  assigns  forever.  To  be  holden  of  our  said  most 
dear  and  royal  father,  his  heirs  and  successors  as  of  his 
manor  of  East  Greenwich  in  the  County  of  Kent  in  free  and 
common  socage  and  not  in  capite  nor  by  knights  service 
yielding  and  paying  therefor  to  the  said  late  King  his  heirs 
and  successors  the  fifth  part  of  the  ore  of  gold  and  silver 
which  should  from  time  to  time  and  at  all  times  there  after 
happen  to  be  found,  gotten,  had  and  obtained  in,  at  or  within 
any  of  the  said  lands,  limits,  territories  and  precincts  or  in 
or  within  any  part  or  parcel  thereof  for  or  in  respect  of  all 
and  all  manner  of  duties,  demands  and  services  Avhatsoever 
to  be  done,  made  or  paid  to  our  said  dear  father  the  late  King, 
his  heirs  and  successors  as  in  and  by  the  said  letters  patent 
(amongst  sundry  other  clauses,  powers,  privileges  and  grants 
therein  contained)  more  at  large  appeareth  :  And  whereas  the 
said  Council  established  at  Plymouth  in  the  County  of  Devon 
for  the  planting,  ruling,  ordering  and  governing  of  New  Eng- 
land in  America  have  by  their  deed  indented  under  their  com- 
mon seal  bearing  date  the  nineteenth  day  of  March  last  past 
in  the  third  year  of  our  reign,  given,  granted,  bargained,  sold, 
enfeoffed,  aliened  and  confirmed  to  Sir  Henry  Rosewell, 
Sir  John  Young,  Knights,  Thomas  Southcott,  John  Hum- 
phrey. John  Endicott  and  Simon  Whetcombe,  their  heirs  and 
associates  forever.  ..All  that  part  of  New  England  in  America 
aforesaid  which  lies  and  extends  between  a  great  river  there 
commonly  called  Monomack  alias  Merrimack  and  a  certain 
other  river  there  called  Charles  River,  being  in  the  bottom  of 
a  certain  bay  there  commonly  called  Massachusetts  alias 
Mattachusetts  alias  Massatusetts  bay,  and  also  all  and  singu- 
lar those  lands  and  hereditaments  whatsoever  lying  within 


OF  MASSACHUSETTS. 


365 


the  space  of  three  English  miles  on  the  South  part  of  the  said 
Charles  River  or  of  any  or  every  part  thereof  ;  And  also  all 
and  singular  the  lands  and  hereditaments  whatsoever  lying 
and  being  within  the  space  of  three  English  miles  to  the 
Southward  of  the  Southermost  part  of  the  said  bay  called 
Massachusetts  alias  Mattachusetts  alias  Massatusetts  bay 
and  also  all  those  lands  and  hereditaments  whatsoever  which 
lie  and  be  within  the  space  of  there  English  miles  to  the 
Northward  of  the  said  river  called  Monomack  alias  Merri- 
mack, or  to  the  Northward  of  any  and  every  part  thereof  ; 
And  all  lands  and  hereditaments  whatsoever  lying  within  the 
limits  aforesaid  North  and  South,  in  latitude  and  breadth 
and  in  length  and  longitude  of  and  within  all  the  breadth 
aforesaid  throughout  the  main  lands  there  from  the  Atlantic 
and  western  sea  and  ocean  on  the  east  part  to  the  south  sea 
on  the  west  part  and  aU  lands  and  grounds,  place  and  places, 
soils,  woods  and  wood  grounds,  havens,  ports,  rivers,  waters, 
fishings  and  hereditaments  whatsoever  lying  within  the  said 
bounds  and  limits  and  every  part  and  parcel  thereof  ;  And  also 
all  islands  lying  in  America  aforesaid  in  said  seas  or  either  of 
them  or  the  western  or  eastern  coasts  or  parts  of  the  said 
tracts  of  land  by  the  said  indenture  mentioned  to  be  given, 
granted,  bargained,  sold,  enfeoffed,  aliened  and  confirmed 
or  any  of  them,  and  also  all  mines  and  minerals  as  well  royal 
mines  of  gold  and  silver  as  other  mines  and  minerals  what- 
soever in  the  said  lands  and  premises  or  any  part  thereof,  and 
all  jurisdictions,  rights,  royalties,  liberties,  freedoms,  immuni- 
ties, privileges,  franchises,  pre-eminences  and  commodities 
whatsoever  which  they  the  said  council  established  at  Plym- 
outh in  the  County  of  Devon  for  the  planting,  ruling,  order- 
ing and  governing  of  New  England  in  America,  then  had  or 
might  use,  exercise  or  enjoy  in  or  within  the  said  lands  and 
premises  by  the  said  indenture  mentioned  to  be  given,  granted, 
bargained,  sold,  enfeoffed  and  confirmed  or  in  or  within  any 
part  or  parcel  thereof  to  have  and  to  hold  the  said  part  of 
New  England  in  America  which  lies  and  extends  and  is 
abutted  as  aforesaid,  and  every  part  and  parcel  thereof,  and 


366 


JUDICIAL  HISTORY 


all  the  said  islands,  rivers,  ports,  havens,  waters,  fishings, 
mines,  minerals,  jurisdictions,  franchises,  royalties,  liberties, 
privileges,  commodities,  hereditaments  and  premises  whatso- 
ever with  the  appurtenances  unto  the  said  Sir  Henry  Rosewell, 
Sir  John  Young,  Thomas  Southcott,  John  Humfrey,  John 
Endicott  and  Simon  Whetcombe,  their  heirs  and  assigns  and 
their  associates  to  the  only  proper  and  absolute  use  and  behoof 
of  the  said  Sir  Henry  Rosewell,  Sir  John  Young,  Thomas 
Southcott,  John  Humphrey,  John  Endicott  and  Simon  Whet- 
combe,  their  heirs  and  assigns  and  their  associates  for  ever- 
more :  To  be  holden  of  us  our  heirs  and  successors  as  of  our 
manor  of  East  Greenwich  in  the  County  of  Kent  in  free  and 
common  socage  and  not  in  capite  nor  by  Knight's  service : 
yielding  and  paying  therefor  unto  us,  our  heirs  and  successors, 
the  fifth  part  of  the  ore  of  gold  and  silver  which  shall  from 
time  to  time  and  at  all  times  hereafter  happen  to  be  found, 
gotten,  had  and  obtained  in  any  of  the  said  lands  within  the 
said  limits  or  in  or  within  any  part  thereof  for  and  in  satisfac- 
tion of  all  manner,  duties,  demands  and  services  whatsoever 
to  be  done,  made  or  paid  to  us,  our  heirs  and  successors  as  in 
and  by  the  said  recited  indenture  more  at  large  may  appear. 
Now  know  ye  that  we  at  the  humble  suit  and  petition  of  the 
said  Sir  Henry  Rosewell,  Sir  John  Young,  Thomas  South- 
cott, John  Humphrey,  John  Endicott  and  Simon  Whetcombe 
and  of  others  whom  they  have  associated  unto  them,  have 
for  divers  good  causes  and  considerations  us  moving,  granted 
and  confirmed  and  by  these  presents  of  our  especial  grace, 
certain  knowledge  and  mere  motion,  do  grant  and  confirm 
unto  the  said  Sir  Henry  Rosewell,  Sir  John  Young,  Thomas 
Southcott,  John  Humphrey,  John  Endicott  and  Simon  Whet- 
combe and  to  their  associates  hereafter  named  [videlicet]  Sir 
Richard  Saltonstall,  Knight,  Isaac  Johnson,  Samuel  A  Mer- 
sey, John  Ven,  Matthew  Cradock,  George  Harwood,  Increase 
Nowell,  Richard  Perry,  Bichard  Bellingham,  Nathaniel 
Wright,  Samuel  Vassall,  Theophilus  Eaton,  Thomas  Goffe, 
Thomas  Adams,  John  Browne,  Samuel  Browne,  Thomas 
Hutchins,  William  Vassall,  William  Pinchion  and  George 


OF  MASSACHUSETTS. 


367 


Foxcrofte,  their  heirs  and  assigns,  all  the  said  part  of  New 
England  in  America  lying  and  extending  between  the  bounds 
and  limits  in  the  said  recited  indenture  expressed,  and  all  lands 
and  grounds,  place  and  places,  soils,  woods  and  wood  grounds, 
havens,  ports,  rivers,  waters,  mines,  minerals,  jurisdictions, 
rights,  royalties,  liberties,  freedoms,  immunities,  privileges, 
franchises,  pre-eminencies,  hereditaments  and  commodities 
whatsoever,  to  them,  the  said  Sir  Henry  Kosewell,  Sir  John 
Young,  Thomas  Southcott,  John  Humphrey,  John  Endicott 
and  Simon  Whetcombe,  their  heirs  and  assigns,  and  to  their 
associates  by  the  said  recited  indenture,  given,  granted, 
bargained,  sold,  enfeoffed,  aliened  and  confirmed,  or  men- 
tioned or  intended  thereby  to  be  given,  granted,  bargained, 
sold,  enfeoffed,  aliened  and  confirmed.  To  have  and  to  hold 
the  said  part  of  New  England  in  America  and  other,  the 
premises  hereby  mentioned,  to  be  granted  and  confirmed  and 
every  part  and  parcel  thereof  with  the  appurtenances,  to  the 
said  Sir  Henry  Rosewell,  Sir  John  Young,  Sir  Richard  Sal- 
tonstall,  Thomas  Southcott,  John  Humphrey,  John  Endicott, 
Simon  Whetcombe,  Isaac  Johnson,  Richard  Perry,  Richard 
Bellingham,  Nathaniel  Wright,  Samuel  Vassall,  Theophilus 
Eaton,  Thomas  Goffe,  Thomas  Adams,  John  Browne,  Sam- 
uel Browne,  Thomas  Hutchins,  Samuel  Aldersey,  John  Ven, 
Matthew  Cradock,  George  Harwood,  Increase  Nowell,  Wil- 
liam Vassall,  William  Pinchion  and  George  Foxcrofte,  their 
heirs  and  assigns  forever  to  their  only  proper  and  absolute 
use  and  behoof  forevermore.  To  be  holden  of  us  our  heirs 
and  successors,  as  of  our  manor  of  East  Greenwich  afore- 
said in  free  and  common  socage  and  not  in  capite  nor  by 
Knight's  service,  and  also  yielding  and  paying  therefor  to 
us,  our  heirs  and  successors,  the  fifth  part  of  all  ore  of  gold 
or  silver  which  from  time  to  time  and  at  all  times  hereafter 
shall  be  there  gotten,  had  or  obtained  for  all  services, 
exactions  and  demands  whatsoever,  according  to  the  ten- 
ure and  reservation  in  the  said  recited  indenture  expressed. 
And  further  know  ye,  that  of  our  more  especial  grace,  certain 
knowledge  and  mere  motion  we  have  given  and  granted,  and 


368 


JUDICIAL  HISTORY 


by  these  present  do  for  us,  our  heirs  and  successors,  give 
and  grant  unto  the  said  Sir  Henry  Rosewell  (the  other  names 
omitted),  their  heirs  and  assigns,  all  that  part  of  New  England 
in  America,  which  lies  and  extends  between  a  great  river  there 
commonly  called  Monomack  river,  alias  Merrimack  river,  and 
a  certain  other  river  there  called  Charles  river  being  in  the 
bottom  of  a  certain  bay  there  commonly  called  Massachusetts 
alias  Mattachusetts  alias  Massatusetts  Bay ;  and  also  all  and 
singular  those  lands  and  hereditaments  whatsoever  lying  with- 
in the  space  of  three  English  miles,  on  the  south  part  of  the  said 
river  called  Charles  river  or  of  any  or  every  part  thereof  ;  and 
also  all  and  singular  the  lands  and  hereditaments  whatsoever 
lying  and  being  within  the  space  of  three  English  miles  to 
the  southward  of  the  southern  most  part  of  the  said  bay  called 
Massachusetts  alias  Mattachusetts  alias  Massatusetts  Bay ; 
and  also  all  those  lands  and  hereditaments  whatsoever  which 
lie  and  be  within  the  space  of  three  English  miles  to  the 
Northward  of  said  river,  called  Monomack  alias  Merri- 
mack, or  to  the  northward  of  any  or  every  part  thereof  and 
all  lands  and  hereditaments,  whatsoever  lying  within  the  limits 
aforesaid,  north  and  south  in  latitude  and  breadth  and  in 
length  and  longitude,  of  and  within  all  the  breadth  aforesaid 
throughout  the  main  lands  there  from  the  Atlantic  and  western 
sea  and  ocean  on  the  east  part  to  the  south  sea  on  the 
west  part ;  and  all  lands  and  grounds,  place  and  places,  soil, 
wood  and  wood  grounds,  havens,  ports,  rivers,  waters  and 
hereditaments  whatsoever,  lying  within  the  said  bounds  and 
limits  and  every  part  and  parcel  thereof  ;  and  also  all  islands 
in  America  aforesaid,  in  the  said  seas  or  either  of  them  on 
the  western  or  eastern  coasts,  or  parts  of  the  said  tract  of 
lands  hereby  mentioned,  to  be  given  and  granted  or  any  of 
them ;  and  all  mines  and  minerals,  as  well  royal  mines  of 
gold  and  silver  as  other  mines  and  minerals  whatsoever  in 
the  said  lands  or  premises  or  any  part  thereof,  and  free  lib- 
erty of  fishing  in  or  within  any,  the  rivers  or  waters  within 
the  bounds  and  limits  aforesaid,  and  the  seas  thereunto  ad- 
joining ;  and  all  fishes,  royal  fishes,  whales,  balan,  sturgeons 


OF  MASSACHUSETTS.  369 

and  other  fishes  of  what  kind  or  nature  soever,  that  shall  at 
anytime  hereafter  be  taken  in  or  within  the  said  seas  or 
waters  or  any  of  them  by  the  said  Sir  Henry  Rosewell  [the 
other  names  omitted] ,  their  heirs  or  assigns  or  by  any  other 
person  or  persons  whatsoever  these  inhabiting,  by  them  or 
any  of  them  to  be  appointed  to  fish  therein.  Provided  al- 
ways that  if  the  said  lands,  islands  or  any  other,  the  premises 
hereinbefore  mentioned,  and  by  these  presents  intended  and 
meant  to  be  granted,  were  at  the  time  of  the  granting  of  the 
said  former  letters  patent,  dated  the  third  day  of  November, 
in  the  eighteentli  year  of  our  said  dear  father's  reign,  afore- 
said, actually  possessed  or  inhabited  by  any  other  Christian 
prince  or  state  or  were  within  the  bounds,  limits  or  territories 
of  that  Southern  Colony,  then  before  granted  by  our  said 
late  father  to  be  planted  by  divers  of  his  loving  subjects  in 
the  south  parts  of  America,  that  then  this  present  grant  shall 
not  extend  to  any  such  parts  or  parcels  thereof  so  formerly 
inhabited  or  lying  within  the  bounds  of  the  southern  planta- 
tion as  aforesaid,  but  as  to  those  parts  or  parcels  so  possessed 
or  inhabited  by  such  Christian  prince  or  state  or  being  within 
the  bounds  aforesaid,  shall  be  utterly  void,  these  presents  or 
anything  therein  contained  to  the  contrary  notwithstanding. 
To  have  and  to  hold,  possess  and  enjoy  the  said  parts  of  New 
England  in  America,  which  lie,  extend  and  are  abutted  as 
aforesaid  and  every  part  or  parcel  thereof,  and  all  the  islands, 
rivers,  ports,  havens,  waters,  fishings,  fishes,  mines,  min- 
erals, jurisdictions,  franchises,  royalties,  liberties,  privileges, 
commodities  and  premises,  whatsoever  with  the  appurte- 
nances unto  the  said  Sir  Henry  Rosewell  [the  other  names 
omitted]  their  heirs  and  assigns  forever,  to  the  only  proper 
and  absolute  use  and  behoof  of  the  said  Sir  Henry  Rosewell 
[same  names  omitted]  their  heirs  and  assigns  for  evermore : 
To  be  holden  of  us,  our  heirs  and  successors  as  of  our  manor 
of  East  Greenwich  in  our  County  of  Kent,  within  our  realm 
of  England  in  free  and  common  soccage  and  not  in  capite 
nor  by  Knight's  service,  and  also  yielding  and  paying  there- 
for to  us,  our  heirs  and  successors,  the  fifth  part  only  of  all 
24 


370 


JUDICIAL  HISTOEY 


ore  of  gold  and  silver,  which  from  time  to  time  and  at  all 
times  hereafter,  shall  be  there  gotten,  had  or  obtained  for  all 
services,  exactions  and  demands  whatsoever ;  provided  al- 
ways and  our  express  will  and  meaning  is  that  only  one  fifth 
part  of  the  gold  and  silver  ore  above  mentioned  in  the  whole 
and  no  more  be  reserved  or  payable  unto  us,  our  heirs  and 
successors  by  color  or  virtue  of  these  presents  the  double 
reservation  or  rentals  uforesaid  or  anything  herein  contained 
notwithstanding.  And  forasmuch  as  the  good  and  prosper- 
ous success  of  the  plantation  of  the  said  parts  of  New  Eng- 
land aforesaid,  intended  by  the  said  Sir  Henry  Rosewell  [the 
other  names  omitted]  to  be  speedily  set  upon,  cannot  but 
chiefly  depend  next  under  the  blessing  of  Almighty  God  and 
the  support  of  our  royal  authority,  upon  the  good  government 
of  the  same,  to  the  end  that  the  affairs  and  businesses  which 
from  time  to  time  shall  happen  and  arise  concerning  the  said 
lands  and  the  plantation  of  the  same  may  be  the  better  man- 
aged and  ordered,  we  have  further  hereby  of  our  special 
grace,  certain  knowledge  and  mere  motion,  given,  granted 
and  confirmed,  and  for  us  our  heirs  and  successors  do  give, 
grant  and  confirm  unto  our  said  trusty  and  well-beloved  sub- 
jects, Sir  Henry  Rosewell  [same  names  omitted],  and  for 
us  our  heirs  and  successors  we  will  and  ordain  that  the  said 
Sir  Henry  Rosewell  [same  names  omitted]  and  all  such 
others  as  shall  hereafter  be  admitted  and  made  free  of  the 
company  and  society  hereafter  mentioned,  shall  from  time 
to  time  and  at  all  times  forever  hereafter  be  by  virtue  of 
these  presents  one  body  corporate  and  politick  in  fact  and 
name  by  the  name  of  the  Governor  and  Company  of  the 
Mattachusetts  Bay  in  New  England,  and  them  by  the  name 
of  the  Governor  and  Company  of  the  Mattachusetts  Bay  in 
New  England,  one  body  politick  and  corporate  in  deed,  fact 
and  name :  We  do  for  us,  our  heirs  and  successors,  make, 
ordain,  constitute  and  confirm  by  these  presents  and  by  that 
name  they  shall  have  perpetual  succession,  and  that  by  the 
same  name  they  and  their  successors  shall  and  may  be  ca- 
pable and  enabled  as  well  to  implead  and  to  be  impleaded, 


OF  MASSACHUSETTS. 


371 


and  to  prosecute,  demand  and  answer  and  be  answered  unto, 
in  all  and  singular  suits,  causes,  quarrels  and  actions  of  what 
kind  or  nature  soever.  And  also  to  have,  take,  possess,  ac- 
quire and  purchase  any  lands,  tenements  or  hereditaments, 
or  any  goods  or  chattels,  and  the  same  to  lease,  grant,  de- 
mise, alien,  bargain,  sell  and  dispose  of  as  other  our  liege 
people  of  this  our  realm  of  England  or  any  other  corporation 
or  body  politick  of  the  same  may  lawfully  do.  And  further 
that  the  said  Governor  and  company  and  their  successors 
may  have  forever  one  common  seal  to  be  used  in  all  causes 
and  occasions  of  the  said  company,  and  the  same  seal  may 
alter,  change,  break  and  new  make  from  time  to  time  at  their 
pleasures.  And  our  will  and  pleasure  is  and  we  do  hereby 
for  us,  our  heirs  and  successors  ordain  and  grant  that  from 
henceforth  forever  there  shall  be  one  Governor,  one  Deputy 
Governor  and  eighteen  assistants  of  the  same  company,  to 
be  from  time  to  time  constituted,  elected  and  chosen  out  of 
the  freemen  of  the  said  company  for  the  time  being  in  such 
manner  and  form  as  hereafter  in  these  presents  is  expressed  ; 
which  said  officers  shall  apply  themselves  to  take  care  for  the 
best  disposing  and  ordering  of  the  general  business  and  affairs 
of,  for  and  concerning  the  said  lands  and  premises  hereby 
mentioned  to  be  granted,  and  the  plantation  thereof  and  the 
government  of  the  people  there.  And  for  the  better  execu- 
tion of  our  royal  pleasure  and  grant  in  this  behalf  we  do  by 
these  presents  for  us,  our  heirs  and  successors,  nominate,  or- 
dain, make  and  constitute  our  well-beloved  the  said  Matthew 
Cradock  to  be  the  first  and  present  Governor  of  the  said 
company,  and  the  said  Thomas  Goffe  to  be  Deputy  Gov- 
ernor, and  the  said  Sir  Richard  Saltonstall,  Isaac  Johnson, 
Samuel  Aldersey,  John  Ven,  John  Humphrey,  John  Endi- 
cott,  Simon  Whitcombe,  Increase  Nowell,  Richard  Perry,  Na- 
thaniel Wright,  Samuel  Vassall,  Theophilus  Eaton,  Thomas 
Adams,  Thomas  Hutchins,  John  Browne,  George  Foxcrofte, 
William  Vassall  and  William  Finchion  to  be  the  present  as- 
sistants of  the  said  company  for  such  time  and  in  such  man- 
ner as  in  and  by  these  presents  is  hereafter  declared  and 


372 


JUDICIAL  HISTORY 


appointed.  And  further  we  will  and  by  these  presents  for 
us,  our  heirs  and  successors,  do  ordain  and  grant  that  the 
Governor  of  the  said  company  for  the  time  being,  or  in  his 
absence  by  occasion  of  sickness  or  otherwise,  the  Deputy 
Governor  for  the  time  being,  shall  have  authority  from  time 
to  time  and  upon  all  occasions  to  give  orders  for  the  assem- 
bling of  the  said  company  and  calling  them  together  to  con- 
sult and  advise  of  the  businesses  and  affairs  of  the  said 
company.  And  that  the  said  Governor  for  the  time  being 
shall  or  may,  once  every  month  or  oftener,  at  their  pleasure, 
assemble  and  hold,  and  keep  a  Court  or  Assembly  of  them- 
selves for  the  better  ordering  and  directing  of  their  affairs. 
And  that  any  seven  or  more  persons  of  the  Assistants,  to- 
gether with  the  Governor  or  Deputy  Governor,  so  assembled, 
shall  be  said,  taken,  held  and  reputed  to  be  and  shall  be  a 
full  and  sufficient  Court  or  Assembly  of  the  said  Company, 
for  the  handling,  ordering  and  dispatching  of  all  such  busi- 
nesses and  occurrences  as  shall  from  time  to  time  happen, 
touching  or  concerning  the  said  company  or  plantation,  and 
that  there  shall  or  may  be  held  and  kept  by  the  Governor  or 
Deputy  Governor  of  the  said  company  and  seven  or  more  of 
the  said  Assistants  for  the  time  being  upon  every  last  Wednes- 
day in  Hillary,  Easter,  Trinity  and  Michas  terms  respec- 
tively for  ever  one  great,  general  and  solemn  Assembly, 
which  four  General  Assemblies  shall  be  styled  and  called 
the  Four  Great  and  General  Courts  of  the  said  Company  :  In 
all  and  every  or  any  of  which  said  Great  and  Generall  Courts 
so  assembled,  we  do  for  us,  our  heirs  and  successors,  give 
and  graunt  to  the  said  Governor  and  Company  and  their  suc- 
cessors, That  the  Governor  or  in  his  absence  the  Deputy 
Governor  of  the  said  Company  for  the  time  being  and  such 
of  the  Assistants  and  freemen  of  the  said  Company  as  shall 
be  present,  or  the  greater  number  of  them  so  assembled, 
whereof  the  Governor  or  Deputy  Governor  and  six  of  the 
Assistants  at  the  least  to  be  seven  shall  have  full  power  and 
authority  to  choose,  nominate  and  appoint  such  and  so  many 
others  as  they  shall  think  fit,  and  that  shall  be  willing  to  ac- 


OF  MASSACHUSETTS. 


373 


cept  the  same  to  be  free  of  the  said  Company  and  Body  and 
then  unto  the  same,  to  admit  and  to  elect  and  constitute  such 
officers  as  they  shail  think  fit  and  requisite  for  the  ordering, 
managing  and  dispatching  of  the  affairs  of  the  said  Governor 
and  Company  and  their  successors.  And  to  make  laws  and 
ordinances  for  the  good  and  welfare  of  the  said  Company, 
and  for  the  government  and  ordering  of  the  said  lands  and 
plantation  and  the  people  inhabiting,  and  to  inhabit  the  same 
as  to  them  from  time  to  time  shall  be  thought  meet,  so  as 
such  laws  and  ordinances  be  not  contrary  or  repugnant  to 
the  laws  and  statutes  of  this  our  realm  of  England :  And 
our  will  and  pleasure  is,  And  we  do  hereby  for  us,  our  heirs 
and  successors,  establish  and  ordain  that  yearly,  once  in  the 
year  forever,  hereafter,  namely,  the  last  Wednesday  in  Easter 
term,  yearby,  the  Governor,  Deputy  Governor  and  Assist- 
ants of  the  said  Company,  and  all  other  officers  of  the  said 
Company,  shall  be  in  the  General  Court  or  Assembly,  to  be 
held  for  that  day  or  time,  newly  chosen  for  the  year  ensuing 
by  such  greater  part  of  the  said  Company,  for  the  time  be- 
ing then  and  there  present,  as  is  aforesaid ;  And  if  it  shall 
happen  the  present  Governor,  Deputy  Governor  and  As- 
sistants, by  these  present  appointed  or  such  as  shall  here- 
after be  newly  chosen  into  their  rooms  or  any  of  them  or  any 
other  of  the  officers  to  be  appointed  for  the  said  Company 
die  or  be  removed  from  his  or  their  several  offices  or  places 
before  the  said  general  day  of  election  (whom  we  do  hereby 
declare  for  any  misdemeanor  or  defect  to  be  removeable 
by  the  Governor  or  Deputy  Governor,  Assistants  and  Com- 
pany or  such  greater  part  of  them  in  any  of  the  publique 
Courts  to  be  assembled  as  aforesaid) ,  That  then  and  in  every 
such  case,  it  shall  and  may  be  lawfull  to  and  for  the  Governor, 
Deputy  Governor,  Assistants  and  Company,  aforesaid,  or 
such  greater  part  of  them  so  to  be  assembled  as  is  aforesaid 
in  any  of  their  assemblies  to  proceed  to  a  new  election  of  one 
or  more  other  of  their  company  in  the  room  or  place,  rooms 
or  places  of  such  officers  so  dying  or  removed  according  to 
their  discretions.     And  immediately  upon  and  after  such 


374 


JUDICIAL  HISTORY 


election  and  elections  made  of  such  Governor,  Deputy  Gov- 
ernor, Assistant  or  Assistants  or  any  other  officers  of  the 
said  Company  in  manner  and  form  aforesaid,  the  authority, 
office  and  power  aforesaid,  given  to  the  former  Governor, 
Deputy  Governor  or  other  officer  or  officers  so  removed 
in  whose  stead  and  place  new  shall  be  so  chosen,  shall  as 
to  him  and  them  and  every  of  them  cease  and  determine ; 
Provided,  also,  and  our  will  and  pleasure  is,  That  as  well 
such  as  are  by  these  presents  appointed  to  be  the  present 
Governor,  Deputy  Governor  and  Assistants  of  the  said  Com- 
pany, as  them  that  shall  succeed  them  and  all  other  officers 
to  be  appointed  and  chosen  as  aforesaid,  shall  before  they 
undertake  the  execution  of  their  said  offices  and  places  re- 
spectively, take  their  corporal  oaths  for  the  due  and  faithful 
performance  of  their  duties  in  their  several  offices  and  places 
before  such  person  or  persons  as  are  by  these  present  here- 
under, appointed  to  take  and  receive  the  same :  That  is  to 
say  the  said  Matthew  Cradock  who  is  hereby  nominated  and 
appointed  the  present  Governor  of  the  said  Company,  shall 
take  the  said  oaths  before  one  or  more  of  the  Masters  of  our 
Courts  of  Chauncery,  for  the  time  being,  unto  which  master 
or  masters  of  Chancery  we  do  by  these  presents,  give  full 
power  and  authority  to  take  and  administer  the  said  oath  to 
the  said  Governor  according^ ;  and  after  the  said  Governor 
shall  be  so  sworn  then  the  said  Deputy  Governor  and  assist- 
ants before  by  these  present,  nominated  and  appointed  shall 
take  the  several  oaths  to  their  offices  and  places  respectively, 
belonging  before  the  said  Matthew  Cradock.  the  present  Gov- 
ernor so  formerly  sworn  as  aforesaid.  And  every  such  person 
as  shall  be  at  the  time  of  the  annual  election  or  otherwise,  upon 
death  or  removal  to  be  the  new  Governor  of  the  said  Com- 
pany, shall  take  theoaths  to  that  place  belonging  before  the 
Deputy  Governor  or  two  of  the  Assistants  of  the  said  Com- 
pany at  the  least  for  the  time  being.  And  the  new  elected 
Deputy  Governor  and  Assistants  and  all  other  officers  to  be 
hereafter  chosen  as  aforesaid,  from  time  to  time  to  take  the 
oath  to  their  places  respectively,  belonging  before  the  Gov- 


OF  MASSACHUSETTS.  375 

ernor  of  the  said  Company  for  the  time  being,  unto  which 
said  Governor,  Deputy  Governor  and  Assistants,  we  do  by 
these  present  give  full  power  and  authority  to  give  and  ad- 
minister the  said  oaths  respectively,  according  to  our  true 
meaning  herein  before  declared,  without  any  commission  or 
further  warrant  to  be  had  and  obtained  of  us,  our  heirs  or 
successors  in  that  behalf.  And  we  do  further  of  our  espe- 
cial grace,  certain  knowledge  and  mere  motion  for  us,  our 
heirs  and  successors,  give  and  grant  to  the  said  Governor 
and  Company,  and  their  successors  forever,  by  these  presents 
that  it  shall  be  lawful  and  free  for  them  and  their  assigns, 
at  all  and  every  time  and  times  hereafter,  out  of  any  of  our 
realms  or  dominions  whatsoever,  to  take,  lead,  carry  and 
transport  for  and  into  their  voyages,  and  for  and  towards 
the  said  plantation  in  New  England,  all  such  and  so  many  of 
our  loving  subjects  or  any  other  strangers  that  will  become 
our  loving  subjects  and  live  under  our  allegiance  as  shall  will- 
ingly accompany  them  in  the  same  voyage  and  plantation, 
and  also  shipping  armour,  weapons,  ordnance,  munition,  pow- 
der, shot,  corn,  victuals  and  all  manner  of  clothing,  imple- 
ments, furniture,  beasts,  cattle,  horses,  mares,  merchandise 
and  aU  other  things  necessary  for  the  said  plantation  and  for 
their  use  and  defence  and  for  trade  with  the  people  there,  and 
in  passing  and  returning  to  and  fro,  any  law  or  statute  to  the 
contrary  hereof  in  any  wise  notwithstanding ;  and  without 
paying  or  yielding  any  custom  or  subsidy  either  inward  or  out- 
ward to  us,  our  heirs  or  successors,  for  the  same  for  the 
space  of  seven  years  from  the  day  of  the  date  of  these 
presents.  Provided  that  none  of  the  said  persons  be  such 
as  shall  be  hereafter,  by  especial  name  restrained  by  us,  our 
heirs  or  successors.  And  for  their  further  encouragement, 
of  our  especial  grace  and  favor,  we  do  by  these  presents  for 
us,  our  heirs  and  successors,  yield  and  grant  to  the  said  Gov- 
ernor and  Company  and  their  successors  and  every  of  them, 
their  factors  and  assigns  that  they  and  every  of  them,  shall 
be  free  and  quit  from  all  taxes,  subsidies  and  customs  in 
New  England  for  the  like  space  of  seven  years,  and  from  all 


376 


JUDICIAL  HISTORY 


taxes  and  impositions  for  the  space  of  twenty  and  one  years, 
upon  all  goods  and  merchandises  at  any  time  or  times  here- 
after, either  upon  importation  thither  or  exportation  from 
thence  into  our  realm  of  England,  or  unto  any  other  our  do- 
minions by  the  said  Governor  and  Company  and  their  suc- 
cessors, their  deputies,  factors  and  assigns  or  any  of  them ;  ex- 
cept only  the  five  pounds  per  centum  due  for  customs  upon  all 
such  goods  and  merchandises  as  after  the  said  seven  years  shall 
be  expired  shall  be  brought  or  imported  into  our  realm  of  Eng- 
land or  any  of  our  dominions  according  to  the  ancient  trade 
of  merchants,  which  five  pounds  per  centum  only  being  paid, 
it  shall  be  thenceforth  lawful  and  free  for  the  said  adven- 
turers the  same  goods  and  merchandises  to  export  and  carry 
out  of  our  said  dominion  into  foreign  parts,  without  any 
custom,  tax  or  other  duty,  to  be  paid  to  us,  our  heirs  or 
successors,  or  to  any  other  officers  or  ministers  of  us,  our 
heirs  or  successors.  Provided  that  the  said  goods  and  mer- 
chandises be  shipped  out  within  thirteen  months  after  their 
first  landing  within  any  part  of  the  said  dominions.  And 
we  do,  for  us,  our  heirs  and  successors,  give  and  grant  unto 
the  said  Governor  and  Company  and  their  successors  that 
whensoever  or  so  often  as  any  custom  or  subsidy  shall  grow 
due  or  payable  unto  us,  our  heirs  or  successors  according  to 
the  limitation  and  appointment  aforesaid,  by  reason  of  any 
goods,  wares  or  merchandises  to  be  shipped  out  or  any  return 
to  be  made  of  any  goods,  wares  or  merchandise  unto  or  from 
the  said  parts  of  New  England  hereby  mentioned,  to  be 
granted  as  aforesaid,  that  then  and  so  often  and  in  such  case 
the  farmers,  customers  and  officers  of  our  customs  of  Eng- 
land and  Ireland,  and  every  of  them,  for  the  time  being, 
upon  request  made  to  them  by  the  said  Governor  and  Com- 
pany, or  their  successors,  factors  or  assigns,  and  upon  con- 
venient security  to  be  given  in  that  behalf,  shall  give  and 
allow  unto  the  said  Governor  and  Company  and  their  suc- 
cessors, and  to  all  and  every  person  and  persons  free  of 
that  company  as  aforesaid,  six  months'  time  for  the  pay- 
ment of  the  one  half  of  all  such  custom  and  subsidy  as  shall 


OF  MASSACHUSETTS. 


377 


be  due  and  payable  unto  us,  our  heirs  and  successors,  for 
the  same ;  for  which  these,  our  letters  patent,  or  the  dupli- 
cate, or  the  enrolment  thereof,  shall  be  unto  our  said  officers 
a  sufficient  warrant  and  discharge.  Nevertheless,  our  will 
and  pleasure  is  that  if  any  of  the  said  goods,  wares  and 
merchandise  which  be  or  shall  be  at  any  time  hereafter  landed 
or  exported  out  of  any  of  our  realms  aforesaid,  and  shall  be 
shipped  with  a  purpose  not  to  be  carried  to  the  parts  of  New 
England  aforesaid,  but  to  some  other  place,  that  then  such 
payment,  duty,  custom,  imposition  or  forfeiture  shall  be  paid 
or  belong  to  us,  our  heirs  and  successors  for  the  said  goods, 
wares  and  merchandise  so  fraudulently  sought  to  be  trans- 
ported, as  if  this  our  grant  had  not  been  made  or  granted. 
And  we  do  further  will  and  by  these  presents  for  us,  our 
heirs  and  successors  firmly  enjoin  and  command  as  well  the 
treasurer,  chancellor  and  barons  of  the  exchequer  of  us,  our 
heirs  and  successors  as  also  all  and  singular  the  customers, 
farmers  and  collectors  of  the  customs,  subsidies  and  import 
and  other  the  officers  and  ministers  of  us,  our  heirs  and  suc- 
cessors whatsoever  for  the  time  being  that  they  and  every 
of  them  upon  the  showing  forth  unto  them  of  these  letters 
patent  or  the  duplicate  or  exemplification  Of  the  same,  with- 
out any  other  writ  or  warrant  whatsoever,  from  us,  our  heirs 
or  successors,  to  be  obtained  or  sued  forth,  do  and  shall 
make  full,  whole,  entire  and  due  allowance  and  clean  dis- 
charge unto  the  said  Governor  and  Company  and  their  suc- 
cessors of  all  customs,  subsidies,  impositions,  taxes  and 
duties  whatsoever  that  shall  or  may  be  claimed  by  us,  our 
heirs  and  successors,  of  or  from  the  said  Governor  and  Com- 
pany and  their  successors,  for  by  reason  of  the  said  goods, 
chattels,  wares,  merchandises  and  premises  to  be  exported 
out  of  our  said  dominions  or  any  of  them,  into  any  part  of 
the  said  lands  or  premises  hereby  mentioned,  to  be  given, 
granted  and  confirmed,  or  for  or  by  reason  of  any  of  the 
said  goods,  chattels,  wares  or  merchandises  to  be  imported 
from  the  said  lands  and  premises  hereby  mentioned  to  be 
given,  granted  and  confirmed  into  any  of  our  said  dominions 


378 


JUDICIAL  HISTORY 


or  any  part  thereof  as  aforesaid,  excepting  only  the  said 
five  pounds  per  centum  hereby  reserved  and  payable  after 
the  expiration  of  the  said  term  of  seven  years  as  aforesaid 
and  not  before  :  And  these  our  letters  patent  on  the  enroll- 
ment, duplicate  or  exemplification  of  the  same  shall  be  forever 
hereafter  from  time  to  time,  as  well  to  the  treasurer,  chan- 
cellor and  barons  of  the  exchequer  of  us  our  heirs  and  suc- 
cessors as  to  all  and  singular  the  customers,  farmers  and  col- 
lectors of  the  customs,  subsidies  and  imports  of  us,  our  heirs 
and  successors  and  all  searchers  and  other  the  officers  and  min- 
isters whatsoever  of  us,  our  heirs  and  successors  for  the  time 
being  a  sufficient  warrant  and  discharge  in  this  behalf.  And 
further  our  will  and  pleasure  is  and  we  do  hereby  for  us, 
our  heirs  and  successors,  ordain  and  declare  and  grant  to 
the  said  Governor  and  Company  and  their  successors,  that 
all  and  every,  the  subjects  of  us,  our  heirs  and  successors, 
which  shall  go  to  and  inhabit  within  the  said  lands  and 
premises  hereby  mentioned  to  be  granted,  and  every  of  their 
children  which  shall  happen  to  be  born  there  or  on  the  seas 
in  going  thither  or  returning  from  thence,  shall  have  and 
enjoy  all  liberties  and  immunities  of  free  and  natural  sub- 
jects within  any  of  the  dominions  of  us,  our  heirs  and  suc- 
cessors, to  all  intents,  constructions  and  purposes  whatso- 
ever, as  if  they  and  every  of  them  were  born  within  the  realm 
of  England.  And  that  the  Governor  and  Deputy  Governor  of 
the  said  company  for  the  time  being,  or  either  of  them,  and  any 
two  or  more  of  such  of  the  said  Assistants  as  shall  be  there- 
unto appointed  by  the  said  Governor  and  Company  at  any  of 
their  Courts  or  Assemblies  to  be  held  as  aforesaid,  shall  and 
may  at  all  times  and  from  time  to  time  hereafter,  have  full 
power  and  authority  to  minister  and  give  the  oath  and  oaths  of 
supremacy  and  allegiance,  or  either  of  them,  to  all  and  every 
person  and  persons  which  shall  at  any  time  or  times  here- 
after go  or  pass  to  the  lands  and  premises  hereby  mentioned 
to  be  granted  to  inhabit  in  the  same.  And  we  do  of  our 
further  grace,  certain  knowledge  and  mere  motion,  give  and 
grant  to  the  said  Governor  and  Company  and  their  success- 


OF  MASSACHUSETTS. 


379 


ors,  That  it  shall  and  may  be  lawfull  to  and  for  the  Governor 
and  Deputy  Governor  and  such  of  the  Assistants  and  free- 
men of  the  said  company  for  the  time  being  as  shall  be  as- 
sembled in  any  of  their  General  Courts  aforesaid,  or  in  any 
other  Courts  to  be  specially  summoned  and  assembled  for 
that  purpose,  or  the  greater  part  of  them  (whereof  the  Gov- 
ernor or  Deputy  Governor  and  six  of  the  Assistants,  to  be 
always  seven),  from  time  to  time,  to  make,  ordain  and  es- 
tablish all  manner  of  wholesome  and  reasonable  orders,  laws, 
statutes  and  ordinances,  directions  and  instructions,  not  con- 
trary to  the  laws  of  this,  our  realm  of  England,  as  well  for 
settling  of  the  forms  and  ceremonies  of  government  and 
magistracy  fit  and  necessary  for  the  said  plantation  and  the 
inhabitants  there,  and  for  naming  and  styling  of  all  sorts  of 
officers,  both  superior  and  inferior,  which  they  shall  find  need- 
full  for  that  government  and  plantation,  and  the  distinguish- 
ing and  setting  forth  of  the  several  duties,  powers  and  limits 
of  every  such  office  and  place  and  the  forms  of  such  oaths 
warrantable  by  the  laws  and  statutes  of  this,  our  realm  of 
England,  as  shall  be  respectively  ministered  unto  them  for 
the  execution  of  the  said  several  offices  and  places,  as  also 
for  the  disposing  and  ordering  of  the  elections  of  such  of  the 
said  officers  as  shall  be  annual,  and  of  such  others  as  shall 
be  to  succeed  in  case  of  death  or  removal  and  ministering 
the  said  oaths  to  the  new  elected  officers,  and  for  impositions 
of  lawfull  fines,  mulcts,  imprisonment  or  other  lawfull  cor- 
rection, according  to  the  course  of  other  corporations  in  this, 
our  realm  of  England,  and  for  the  directing,  ruling  and  dis- 
posing of  all  other  matters  and  things  whereby  our  said  peo- 
ple, inhabitants  there,  ma}T  be  so  religiously,  peaceably  and 
civilly  governed  as  their  good  life  and  orderly  conversation 
may  win  and  incite  the  natives  of  the  country  to  the  knowl- 
edge and  obedience  of  the  only  true  God  and  Saviour  of 
mankind,  and  the  Christian  faith  which  in  our  royal  inten- 
tion and  the  adventurers'  free  profession  is  the  peacefull  end 
of  this  plantation.  Willing,  commanding  and  requiring  and 
by  these  presents  for  us,  our  heirs  and  successors,  ordaining 


3S0 


JUDICIAL  HISTORY 


and  appointing  that  all  such  orders,  laws,  statutes  and  ordi- 
nances, instructions  and  directions  as  shall  be  so  made  by 
the  Governor  or  Deputy  Governor  of  the  said  Company  and 
such  of  the  Assistants  and  freemen  as  aforesaid  and  pub- 
lished in  writing  under  their  common  seal,  shall  be  carefully 
and  duly  observed,  kept,  performed  and  put  in  execution 
according  to  the  true  intent  and  meaning  of  the  same :  and 
these  our  letters  patent  or  the  duplicate  on  exemplification 
thereof  shall  be  to  all  and  every  such  officers,  superior  and 
inferior,  from  time  to  time  for  the  putting  of  the  same  or- 
ders, laws,  statutes  and  ordinances,  instructions  and  direc- 
tions in  due  execution  against  us,  our  heirs  and  successors, 
a  sufficient  warrant  and  discharge.  And  we  do  further  for 
us  our  heirs  and  successors  give  and  grant  to  the  said  Gov- 
ernor and  company  and  their  successors  by  these  presents, 
That  all  and  every  such  chief  commanders,  captains,  gov- 
ernors and  other  officers  and  ministers  as  by  the  said  orders, 
laws,  statutes,  ordinances,  instructions  or  directions  of  the 
said  Governor  and  Company  for  the  time  being  shall  be  from 
time  to  time  hereafter  employed,  either  in  the  government  of 
the  said  inhabitants  and  plantation  or  in  the  way  by  sea 
thither  or  from  thence,  according  to  the  natures  and  limits 
of  their  offices  and  places  respectively,  shall  from  time  to 
time  hereafter  forever  within  the  precincts  and  parts  of  New 
England  hereby  mentioned  to  be  granted  and  confirmed  or 
in  the  way  by  sea  thither  or  from  thence,  have  full  and  abso- 
lute power  and  authority  to  correct,  punish,  pardon,  govern 
and  rule  all  such,  the  subjects  of  us  our  heii-s  and  successors, 
as  shall  from  time  to  time  adventure  themselves  in  any  voy- 
age thither  or  from  thence,  or  that  shall  at  any  time  here- 
after inhabit  within  the  precincts  and  parts  of  New  England 
aforesaid,  according  to  the  orders,  laws,  ordinances,  instruc- 
tions and  directions  aforesaid  not  being  repugnant  to  the 
laws  and  statutes  of  our  realm  of  England  as  aforesaid  :  And 
we  do  further  for  us,  our  heirs  and  successors  give  and 
grant,  to  the  said  Governor  and  Company  and  their  succes- 
sors by  these  presents,  That  it  shall  and  may  be  lawf  ull  to 


OF  MASSACHUSETTS. 


381 


and  for  the  chief  commanders,  governors  and  officers  of  said 
Company  for  the  time  being,  who  shall  be  resident  in  that  part 
of  New  England  in  America  by  these  presents  granted,  and 
others  there  inhabiting,  by  their  appointment  and  direction 
from  time  to  time  and  at  all  times  hereafter  for  their  special 
defence  and  safety  to  encounter,  expulse,  repell  and  resist  by 
force  of  arms,  as  well  by  sea  as  by  land  and  by  all  fitting  ways 
and  means  whatsoever,  all  such  person  and  persons  as  shall  at 
any  time  hereafter  attempt  or  enterprise  the  destruction,  inva- 
sion, detriment  or  annoyance  to  the  said  plantation  or  inhabi- 
tants, and  to  take  and  surprise  by  all  ways  and  means  what- 
soever all  and  every  such  person  and  persons  with  their  ships, 
armor,  munition  and  other  goods  as  shall  in  hostile  manner 
invade  or  attempt  the  defeating  of  the  said  plantation  or  the 
hurt  of  the  said  company  and  inhabitants  :  Nevertheless  our 
will  and  pleasure  is  and  we  do  hereby  declare  to  all  Chris- 
tian kings,  princes  and  states  that  if  any  person  or  persons 
which  shall  hereafter  be  of  the  said  company  or  plantation 
or  any  other  by  license  or  appointment  of  the  said  Governor 
and  company  for  the  time  being  shall  at  any  time  or  times 
hereafter  rob  or  spoil  by  sea  or  by  land  or  do  any  hurt,  vio- 
lence or  unlawful  hostility  to  any  of  the  subjects  of  us,  our 
heirs  or  successors,  or  any  of  the  subjects  of  any  prince  or 
state  being  then  in  league  and  amity  with  us,  our  heirs  and  suc- 
cessors, and  that  upon  such  injury  done  and  upon  just  com- 
plaint of  such  prince  or  state  on  their  subjects  we,  our  heirs 
and  successors,  shall  make  open  proclamation  within  any  of 
the  parts  within  our  realm  of  England  commodious  for  that 
purpose  that  the  person  or  persons  having  committed  any 
such  robbery  or  spoil  shall  within  the  term  limited  by  such 
a  proclamation  make  full  restitution  or  satisfaction  of  ad  such 
injuries  done  so  as  the  said  prince  or  others  so  complaining 
may  hold  themselves  fully  satisfied  and  contented  ;  and  that 
if  the  said  person  or  persons  having  committed  such  robbery 
or  spoil  shall  not  make  or  cause  to  be  made  satisfaction  ac- 
cordingly within  such  time  so  to  be  limited,  that  then  it  shall 
be  lawful  for  us,  our  heirs  and  successors  to  put  the  said  per- 


382 


JUDICIAL  HISTORY 


son  or  persons  out  of  our  allegiance  and  protection  and  that 
it  shall  be  lawful  and  free  for  all  princes  to  prosecute  with 
hostility  the  said  offenders  and  every  of  them,  their  and 
every  of  their  procurers,  aiders,  abettors  and  comforters  in 
that  behalf :  Provided  also  and  our  express  will  and  pleas- 
ure is  and  we  do  by  these  presents  for  us,  our  heirs  and  suc- 
cessors, ordain  and  appoint  that  these  presents  shall  not  in 
any  manner  enure  or  be  taken  to  abridge,  bar  or  hinder  any 
of  our  loving  subjects  whatsoever  to  use  and  exercise  the 
trade  of  fishing  upon  that  coast  of  New  England  in  America 
by  these  presents  mentioned  to  be  granted  ;  but  that  they  and 
every  or  any  of  them  shall  have  full  and  free  power  and  liberty 
to  continue  and  use  their  said  trade  of  fishing  upon  the  said 
coast  in  any  the  seas  thereunto  adjoining  or  any  arms  of  the 
seas  or  salt  water  rivers  where  they  have  been  wont  to  fish 
and  to  build  and  set  up  upon  the  lands  by  these  presents 
granted  such  wharves,  stages  and  work  houses  as  shall  be 
necessary  for  the  salting,  drying,  keeping  and  packing  up  of 
their  fish  to  be  taken  or  gotten  upon  that  coast ;  and  to  cut 
down  and  take  such  trees  and  other  materials  there  growing 
or  being  as  shall  be  needful  for  that  purpose  and  for  all 
other  necessary  easements,  helps  and  advantage  concerning 
their  said  trade  of  fishing  there  in  such  manner  and  form  as 
they  have  been  heretofore  at  any  time  accustomed  to  do 
without  making  any  wilful  waste  or  spoil,  anything  in  these 
presents  contained  to  the  contrary  notwithstanding.  And 
we  do  further  for  us,  our  heirs  and  successors,  ordain  and 
grant  to  the  said  Governor  and  Company  and  their  successors 
by  these  presents  that  these  our  letters  patent  shall  be  firm, 
good,  effectual  and  available  in  all  things  and  to  all  intents 
and  constructions  of  law  according  to  our  true  meaning 
herein  before  declared  and  shall  be  construed,  reputed  and 
adjudged  in  all  cases  most  favorably  on  the  behalf  and  for 
the  benefit  and  behoof  of  the  said  Governor  and  Company 
and  their  successors  ;  although  express  mention  of  the  true 
yearly  value  or  certainty  of  the  premises  or  any  of  them  or 
of  any  other  gifts  or  grants  by  us  or  any  of  our  progenitors 


OF  MASSACHUSETTS. 


383 


or  predecessors  to  the  aforesaid  Governor  or  Company  be- 
fore this  time  made  in  their  presents  is  not  made  ;  or  any 
statute,  act,  ordinance,  provision,  proclamation  or  restraint 
to  the  contrary  thereof  heretofore  had,  made,  published,  or- 
dained or  provided  or  any  other  matter,  cause  or  thing  what- 
soever to  the  contrary  thereof  in  anywise  notwithstanding. 

In  witness  whereof  we  have  caused  these  our  letters  to  be 
made  patent. 

Witness  ourself  at  Westminster  the  fourth  day  of  March 
in  the  fourth  year  of  our  reign. 

Per  Breve  de  Privato  Sigillo 

Wolseley. 

Praedictus  Matthaeus  Cradocke  Juratus  est  de  Fide  et 
Obedientia  Regi  et  Successoribus  suis  et  de  Debita  Executione 
Officii  Gubernatoris  juxta  Tenorem  Praesentium  18  Martii 
1628.    Coram  me  Carolo  Caesare  Milite  in  Cancellaria  Mro. 

Char.  Caesar. 


384 


JUDICIAL  HISTORY 


APPENDIX 
E. 

CHARTER  OF  THE  PROVINCE  OF  THE  MASSACHUSETTS  BAY. 


William  and  Mary  by  the  grace  of  God,  King  and  Queen 
of  England,  Scotland,  France  and  Ireland,  defenders  of  the 
faith  &c,  To  all  to  whom  these  presents  shall  come,  greeting  : 
Whereas  his  late  majesty  King  James  the  First  our  royal  pre- 
decessor by  his  letters  patents  under  the  great  seal  of  Eng- 
land, bearing  date  at  Westminster  the  third  day  of  Novem- 
ber, in  the  eighteenth  year  of  his  reign,  did  give  and  grant 
unto  the  council,  established  at  Plymouth  in  the  County  of 
Devon,  for  the  planting,  ruling,  ordering  and  governing  of 
New  England  in  America,  and  to  their  successors  and  assigns, 
all  that  part  of  America,  lying  and  being  in  breadth  from 
forty  degrees  of  northerly  latitude  from  the  equinoctial  line 
to  the  forty- eighth  degree  of  the  said  northerly  latitude  in- 
clusively and  in  length  of  and  within  all  the  hreadth  afore- 
said, throughout  all  the  main  lands  from  sea  to  sea  together, 
also  with  all  the  firm  lands,  soils,  grounds,  havens,  ports, 
rivers,  waters,  fishings,  mines  and  minerals,  as  well  royal 
mines  of  gold  and  silver  as  other  mines  and  minerals,  pre- 
cious stones,  quarries  and  all  and  singular,  other  commodities, 
jurisdictions,  royalties,  privileges,  franchises  and  pre-emi- 
nences, both  within  the  said  tract  of  land  upon  the  main  and 
also  within  the  islands  and  seas  adjoining.  Provided  always 
that  the  said  lands,  islands  or  any  the  premises  by  the  said 
letters  patent  intended  or  meant  to  be  granted  were  not  then 
actually  possessed  or  inhabited  by  any  other  Christian  prince 
or  state  or  within  the  bounds,  limits  or  territories  of  the  south- 
ern colony  then  before  granted  by  the  said  late  King  James, 
the  first  to  be  planted  by  divers  of  his  subjects  in  the  south 


OF  MASSACHUSETTS. 


385 


parts ;  To  have  and  to  hold,  possess  and  enjoy,  all  and  sin- 
gular the  aforesaid  continent,  lands,  territories,  islands,  here- 
ditaments and  precincts,  seas,  waters,  fishings,  with  all  and 
all  manner  of  their  commodities,  royalties,  liberties,  pre-emi- 
nences and  profits  that  should  from  thenceforth  arise  from 
thence,  with  all  and  singular  their  appurtenances  and  every 
part  and  parcel  thereof,  unto  the  said  council  and  their  suc- 
cessors and  assigns  forever,  to  their  sole  and  proper  use  and 
benefit  of  the  said  council  and  their  successors  and  assigns 
forever :  To  be  holden  of  his  said  late  majesty  King  James 
the  First,  his  heirs  and  successors  as  of  his  manor  of  East 
Greenwich,  in  the  County  of  Kent,  in  free  and  common  so- 
cage and  not  in  capite  or  by  Knighfs  service,  yielding  and 
paying  therefor  to  the  said  late  King,  his  heirs  and  successors, 
the  fifth  part  of  the  ore  of  gold  and  silver,  which  should 
from  time  to  time  and  at  all  times  there  after  happen  to  be 
found,  gotten,  had  and  obtained  in,  at  or  within  any  part  or 
parcel  thereof,  for  or  in  respect  of  all  and  all  manner  of 
duties,  demands  and  services  whatsoever,  to  be  done,  made 
or  paid  to  the  said  late  King  James,  the  first,  his  heirs  and 
successors  (as  in  and  by  the  said  letters  patent  amongst  sun- 
dry other  claims,  powers,  privileges  and  grants  therein  con- 
tained more  at  large  appeareth) :  And  whereas  the  said  Coun- 
cil established  at  Plymouth  in  the  County  of  Devon,  for  the 
planting,  ruling,  ordering  and  governing  of  New  England  in 
America,  did  by  their  deed  indented  under  their  common 
seal,  bearing  date  the  nineteenth  of  March,  in  the  third  year 
of  the  reign  of  our  royal  grandfather  King  Charles,  the  first  of 
ever  blessed  memory,  give,  grant,  bargain,  sell,  enfeoff,  alien 
and  confirm  to  Sir  Henry  Rosewell,  Sir  John  Young,  Knights, 
Thomas  Southcott,  John  Humphreys,  John  Endicott  and 
Simon  Whetcombe,  their  heirs  and  assigns  and  their  associates 
forever,  all  that  part  of  New  England  in  America  aforesaid, 
which  lies  and  extends  between  a  great  river  there  com- 
monly called  Monomack  alias  Merimack,  and  a  certain  other 
river  there  called  Charles  river  being  in  a  bottom  of  a  certain 
bay  there  commonly  called  Massachusetts  alias  Mattachu- 
25 


386 


JUDICIAL  HISTORY 


setts  alias  Massatusetts  bay,  and  also  all  and  singular  those 
lands  and  hereditaments  whatsoever  lying  within  the  space 
of  three  English  miles  on  the  South  part  of  the  said  Charles 
river,  or  of  any  or  every  part  thereof ;  and  also  all  and  singu- 
lar, the  lands  and  hereditaments  whatsoever  lying  and  being 
within  the  space  of  three  English  miles  to  the  Southward  of 
the  Southernmost  part  of  the  said  bay  called  Massachusetts 
alias  Mattachusetts  alias  Massatusetts  bay ;  and  also  all 
those  lands  and  hereditaments  whatsoever  which  lie  and  be 
within  the  space  of  three  English  miles  to  the  Northward  of 
the  said  river  called  Monomack  alias  Merimack  or  to  the 
Northward  of  any  and  every  part  thereof,  and  all  lands  and 
hereditaments  whatsoever,  lying  within  the  limits  aforesaid 
North  and  South  in  latitude  and  in  breadth  and  in  length  and 
longitude  of  and  within  all  the  breadth  aforesaid,  through- 
out the  main  lands  there  from  the  Atlantic  and  western  sea 
and  ocean  on  the  East  part  to  the  South  sea  on  the  west  part 
and  all  lands  and  grounds,  place  and  places,  soil,  woods  and 
wood  grounds,  havens,  ports,  rivers,  waters,  fishings  and 
hereditaments  whatsoever,  lying  within  the  said  bounds  and 
limits  and  every  part  and  parcel  thereof  ;  and  also  all  islands 
lying  in  America  aforesaid  in  the  said  seas  or  either  of  them 
on  the  western  or  eastern  coasts  or  parts  of  the  said  tracts 
of  land  by  the  said  indenture  mentioned  to  be  given  and 
granted,  bargained,  sold,  enfeoffed,  aliened  and  confirmed 
or  any  of  them;  and  also  all  mines  and  minerals,  as  well 
royal  mines  of  gold  and  silver  as  other  mines  and  minerals 
whatsoever  in  the  said  lands  and  premises  or  any  part  thereof, 
and  all  jurisdictions,  rights,  royalties,  liberties,  freedoms, 
immunities,  privileges,  franchises,  pre-eminences  and  com- 
modities whatsoever,  which  they  the  said  council  established 
at  Plymouth  in  the  County  of  Devon  for  the  planting,  rul- 
ing, ordering  and  governing  of  New  England  in  America, 
then  had  or  might  use,  exercise  or  enjoy  in  or  within  the  said 
lands  and  premises  by  the  same  indenture  mentioned,  to  be 
given,  granted,  bargained,  sold,  enfeoffed  and  confirmed  in 
or  within  any  part  or  parcel  thereof :  To  have  and  to  hold 


OF  MASSACHUSETTS. 


387 


the  said  part  of  New  England  in  America  which  lies  and 
extends  and  is  abutted  as  aforesaid  and  every  part  and 
parcel  thereof  ;  and  all  the  said  islands,  rivers,  ports,  havens, 
waters,  fishings,  mines,  minerals,  jurisdictions,  franchises, 
royalties,  liberties,  privileges,  commodities,  hereditaments 
aud  premises  whatsoever  with  the  appurtenances  unto  the 
said  Sir  Henry  Rosewell,  Sir  John  Young,  Thomas  South- 
cott,  John  Humphreys,  John  Endicott  and  Simon  Whet- 
combe  their  heirs  and  assigns,  and  their  associates  forever, 
to  the  only  proper  and  absolute  use  aud  behoof  of  the  said  Sir 
Henry  Rosewell,  Sir  John  Young,  Thomas  Southcott,  John 
Humphreys,  John  Endicott  and  Simon  Whetcombe,  their 
heirs  and  assigns  and  their  associates  forevermore  :  To  be 
holden  of  onr  said  royal  grandfather,  King  Charles  the  first, 
his  heirs  and  successors  as  of  his  manor  of  East  Greenwich 
in  the  County  of  Kent  in  free  and  common  socage  and  not 
in  capite  nor  by  Knight's  service,  yielding  and  paying  there- 
for unto  our  said  royal  grandfather  his  heirs  and  successors 
the  fifth  part  of  the  ore  of  gold  and  silver  which  should  from 
time  to  time  and  at  all  times  hereafter  happen  to  be  found, 
gotten,  had  and  obtained  in  any  of  the  said  lauds  within  the 
said  limits  or  in  or  within  any  part  thereof  for  and  in  satisfac- 
tion of  all  manner  of  duties,  demands  and  services  whatso- 
ever to  be  done,  made  or  paid  to  our  said  royal  grandfather, 
his  heirs  or  successors  (as  in  and  by  the  said  recited  inden- 
ture may  more  at  large  appear).  And  whereas  our  said 
royal  grandfather  in  and  by  his  letters  patent  under  the 
great  seal  of  England  bearing  date  at  AVestminster,  the 
fourth  day  of  March  in  the  fourth  year  of  his  reign  for 
the  consideration  therein  mentioned,  did  grant  and  con- 
firm unto  the  said  Sir  Henry  Rosewell,  Sir  John  Young, 
Thomas  Southcott,  John  Humphreys,  John  Endicott  and 
Simon  Whitcombe  and  to  their  associates  after  named 
viz.,  Sir  Richard  Saltonstall,  Knight,  Isaac  Johnson,  Sam- 
uel Aldersey,  John  Ven,  Matthew  Craddock,  George  Har- 
wood,  Increase  Nowell,  Richard  Perry,  Richard  Belling- 
ham,  Nathaniel  Wright,  Samuel  Vassall,  Theophilus  Eaton, 


388 


JUDICIAL  HISTORY 


Thomas  Goffe,  Thomas  Adams,  John  Brown,  Samuel  Brown, 
Thomas  Hntchins,  William  Vassall,  William  Pincheon  and 
George  Foxcroft,  their  heirs  and  assigns,  all  the  said  part  of 
New  England  in  America,  lying  and  extending  between  the 
bounds  and  limits  in  the  said  indenture  expressed,  and  all 
lands  and  grounds,  place  and  places,  soils,  woods  and  wood 
grounds,  havens,  ports,  rivers,  waters,  mines,  minerals,  ju- 
risdictions, rights,  royalties,  liberties,  freedoms,  immunities, 
privileges,  franchises,  pre-eminences  and  hereditaments 
whatsoever;  bargained,  sold,  enfeoffed  and  confirmed  or 
mentioned  or  intended  to  be  given,  granted,  bargained,  sold, 
enfeoffed,  aliened  and  confirmed  to  them  the  said  Sir  Henry 
Rosewell,  Sir  John  Young,  Thomas  Southcott,  John  Hum- 
phreys, John  Eudicott  and  Simon  Whetcombe,  their  heirs  and 
assigns,  and  to  their  associates  forever,  by  the  said  recited 
indenture  :  To  have  and  to  hold  the  said  part  of  New  Eng- 
land in  America  and  other  the  premises  thereby  mentioned 
to  be  granted  and  confirmed  and  every  part  and  parcel  there- 
of, with  the  appurtenances  to  the  said  Sir  Henry  Rosewell, 
Sir  John  Young,  Sir  Richard  Saltonstall,  Thomas  Southcott, 
John  Humphreys,  John  Kndicott,  Simon  AVhetcombe,  Isaac 
Johnson,  Samuel  Aldersey,  John  Ven,  Matthew  Craddock, 
George  Harwood,  Increase  Nowell,  Richard  Perry,  Richard 
Bellingham,  Nathaniel  Wright,  Samuel  Vassall,  Theophilus 
Eaton,  Thomas  Goffe,  Thomas  Adams,  John  Brown,  Samuel 
Brown,  Thomas  Hutchins,  William  Vassall,  William  Pincheon 
and  George  Foxcroft,  their  heirs  and  assigns  forever,  to 
their  only  proper  and  absolute  use  and  behoof  forevermore  : 
To  be  holden  of  our  said  royal  grandfather,  his  heirs  and 
successors  as  of  his  manor  of  East  Greenwich  aforesaid,  in 
free  and  common  soccage  and  not  in  capite  nor  by  Knight's 
service ;  and  also  yielding  and  paying  therefor  to  our  said 
royal  grandfather,  his  heirs  and  successors,  the  fifth  part 
only  of  all  the  ore  of  gold  and  silver  which  from  time  to  time 
and  at  all  times  after,  should  be  gotten,  had  or  obtained  for 
all  services,  exactions  and  demands  whatsoever,  according  to 
the  tenor  and  reservation  in  the  said  recited  indenture  ex- 


OF  MASSACHUSETTS. 


389 


pressed.  And  further  our  said  royal  grandfather  by  the  said 
letters  patent  did  give  and  grant  unto  the  said  Sir  Henry 
Rosewell,  Sir  John  Young,  Sir  Richard  Saltonstall,  Thomas 
Southcott,  John  Humphreys,  John  Endicott,  Simon  Whet- 
combe,  Isaac  Johnson,  Samuel  Aldersey,  John  Ven,  Matthew 
Craddock,  George  Harwood,  Increase  Nowell,  Richard 
Perry,  Richard  Bellingham,  Nathaniel  Wright,  Samuel  Vas- 
s all,  Theophilus  Eaton,  Thomas  Goffe,  Thomas  Adams,  John 
Brown,  Samuel  Brown,  Thomas  Hutchins,  William  Vassall, 
William  Pincheon  and  George  Foxcroft,  their  heirs  and  as- 
signs, all  that  part  of  New  England  in  America,  which  lies 
and  extends  between  a  great  river  commonly  called  Mono- 
mack  alias  Merimack  river,  and  a  certain  other  river  there 
called  Charles  river,  being  in  the  bottom  of  a  certain  bay  there 
commonly  called  Massachusetts,  alias  Mattachusetts,  alias 
Massatusetts  bay ;  and  also  all  and  singular  those  lands  and 
hereditaments  whatsoever  lying  within  the  space  of  three  Eng- 
lish miles  on  the  South  part  of  the  said  river  called  Charles 
river  or  of  any  or  every  part  thereof  ;  and  also  all  and  singular 
the  lands  and  hereditaments  whatsoever  lying  and  being  with- 
in the  space  of  three  English  miles  to  the  Northward  of  the 
said  river  called  Monomack  alias  Merimack  or  to  the  North- 
ward of  any  and  every  part  thereof,  and  all  lands  and  here- 
ditaments whatsoever  lying  within  the  limits  aforesaid  North 
and  South  in  latitude  and  breadth  and  in  length  and  longi- 
tude of  and  within  all  the  breadth  aforesaid  throughout  the 
main  lands  there,  from  the  Atlantic  or  western  sea  and  ocean 
on  the  East  part  to  the  South  sea  on  the  West  part :  and  all 
lands  and  grounds,  place  and  places,  soils,  woods  and  wood 
lands,  havens,  ports,  rivers,  waters  and  hereditaments  what- 
soever lying  within  the  said  bounds  and  limits  and  every 
part  and  parcel  thereof  ;  and  also  all  islands  in  America 
aforesaid  in  the  said  seas  or  either  of  them  on  the  western 
or  eastern  coasts  or  parts  of  the  said  tracts  of  lands  thereby 
mentioned,  to  be  given  and  granted  or  any  of  them;  and  all 
mines  and  minerals  as  well  royal  mines  of  gold  and  silver  as 
other  mines  and  minerals  whatsoever  in  the  said  lands  and 


390 


JUDICIAL  HISTORY 


premises  or  any  part  thereof ;  and  free  liberty  of  fishing  in 
or  within  any  of  the  rivers  and  waters  within  the  bounds 
and  limits  aforesaid  and  the  seas  thereunto  adjoining ;  and 
of  all  fishes,  royal  fishes,  whales,  balan,  sturgeon  and  other 
fishes  of  what  kind  or  nature  soever,  that  should  at  any  time 
thereafter  be  taken  in  or  within  the  said  seas  or  waters  or 
any  of  them  by  the  said  Sir  Henry  Kosewell,  Sir  John  Young, 
Sir  Richard  Saltonstall,  Thomas  Southcott,  John  Humph- 
reys, John  Endieott,  Simon  Whetcombe,  Isaac  Johnson, 
Samuel  Aldersey,  John  Ven,  Matthew  Craddock,  George 
Harwood,  Increase  Nowell,  Richard  Perry,  Richard  Belling- 
ham,  Nathaniel  Wright,  Samuel  Vassall,  Theophilus  Eaton, 
Thomas  Goffe,  Thomas  Adams,  John  Brown,  Samuel  Brown, 
Thomas  Hutchins,  William  Vassall,  William  Pincheon  and 
George  Foxcrof  t,  their  heirs  or  assigns,  or  by  any  other  person 
or  persons  whatsoever  there  inhabiting  by  them  or  any  of  them 
to  be  appointed  to  fish  therein  :  Provided  always  that  if  the 
said  lands,  islands  or  any  the  premises  before  mentioned  and 
by  the  said  letters  patent  last  mentioned,  intended  and  meant 
to  be  granted  were  at  the  time  of  granting  of  the  said  former 
letters  patent  dated  the  third  day  of  November  in  the  eight- 
eenth year  of  the  reign  of  his  late  Majesty.  King  James  the 
first,  actually  possessed  or  inhabited  by  any  other  Christian 
prince  or  state  or  were  within  the  bounds,  limits  or  territories 
of  the  said  Southern  Colony  then  before  granted  by  the  said 
King  to  be  planted  by  divers  of  his  loving  subjects  in  the 
South  parts  of  America,  that  then  the  said  grant  of  our  said 
royal  grandfather  should  not  extend  to  any  such  parts  or 
parcels  thereof  so  formerly  inhabited  or  lying  within  the 
bounds  of  the  Southern  plantation  as  aforesaid.  But  as  to 
those  parts  or  parcels  so  possessed  or  inhabited  by  any  such 
Christian  prince  or  state,  or  being  within  the  boundaries 
aforesaid,  should  be  utterly  void :  To  have  and  to  hold,  pos- 
sess and  enjoy  the  said  parts  of  New  England  in  America 
which  lie,  extend  and  are  abutted  as  aforesaid  and  every 
part  and  parcel  thereof ;  and  all  the  islands,  rivers,  ports, 
havens,  waters,  fishing,  fishes,  mines,  minerals,  jurisdictions, 


OF  MASSACHUSETTS. 


391 


franchises,  royalties,  liberties,  privileges,  commodities  and 
premises  whatsoever,  with  the  appurtenances  unto  the  said 
Sir  Henry  Rosewell,  Sir  John  Young,  Sir  Richard  Saltonstall, 
Thomas  Southcott,  John  Humphreys,  John  Endicott,  Simon 
Whetcombe,  Isaac  Johnson,  Samuel  Alclersey,  John  Ven, 
Matthew  Craddock,  George  Harwood,  Increase  Nowell,  Rich- 
ard Perry,  Richard  Bellingham,  Nathaniel  Wright,  Samuel 
Vassall.  Theophilus  Eaton,  Thomas  Goffe,  Thomas  Adams, 
John  Brown,  Samuel  Brown,  Thomas  Hutchins,  William  Vas- 
sall, William  Pincheon  and  George  Foxcroft,  their  heirs  and 
assigns  forever  :  To  the  only  proper  and  absolute  use  and  be- 
hoof of  the  said  Sir  Henry  Rosewell,  Sir  John  Young,  Sir  Rich- 
ard Saltonstall,  Thomas  Southcott,  John  Humphrey,  John  En- 
dicott, Simon  Whitcombe,  Isaac  Johnson,  Samuel  Alclersey, 
John  Ven,  Matthew  Craddock,  George  Harwood,  Increase 
Nowell,  Richard  Perry,  Richard  Bellingham,  Nathaniel 
Wright,  Samuel  Vassall,  Theophilus  Eaton,  Thomas  Goffe, 
Thomas  Adams,  John  Brown,  Samuel  Brown,  Thomas 
Hutchins,  William  Vassall,  William  Pincheon  and  George 
Foxcroft,  their  heirs  and  assigns  f orevermore  :  To  be  holden 
of  our  said  royal  grandfather,  his  heirs  and  successors,  as 
of  his  manor  of  P^ast  Greenwich  in  the  County  of  Kent 
within  the  realm  of  England,  in  free  and  common  socage 
and  not  in  capite  nor  by  Knight's  service  :  And  also  yielding 
and  paying  therefor  to  our  said  royal  grandfather,  his  heirs 
and  successors,  the  fifth  part  only  of  all  the  ore  of  gold  and  sil- 
ver which  from  time  to  time  and  at  all  times  hereafter,  should 
be  gotten,  had  or  obtained  for  all  services,  exactions  and  de- 
mands whatsoever.  Provided  always  and  his  majesty's  ex- 
press will  and  meaning  was  that  only  one  fifth  part  of  all  the 
gold  and  silver  ore  above  mentioned  in  the  whole  and  no 
more  should  be  answered,  reserved  or  payable  unto  our  said 
royal  grandfather,  his  heirs  and  successors,  by  color  or  vii> 
tue  of  the  said  last  mentioned  letters  patent,  the  double  re- 
servations or  recitals  aforesaid  or  anything  therein  contained 
notwithstanding.  And  to  the  end  that  the  affairs  and  busi- 
ness which  from  time  to  time  should  happen  and  arise  con- 


392 


JUDICIAL  HISTORY 


cerning  the  said  lands  and  the  plantations  of  the  same  might 
be  the  better  managed  and  ordered,  and  for  the  good  govern- 
ment thereof  our  said  royal  grandfather,  King  Charles  the 
first,  did  by  his  said  letters  patent  create  and  make  the  said 
Sir  Henry  Rosewell,  Sir  John  Young,  Sir  Richard  Saltonstall, 
Thomas  Southcott,  John  Humphreys,  John  Endicott,  Simon 
Whiteombe,  Isaac  Johnson,  Samuel  Aldersey,  John  Ven, 
Matthew  Craddock,  George  Harwood.  Increase  Nowell, 
Richard  Perry,  Richard  Bellingham,  Nathaniel  Wright,  Sam- 
uel Vassall,  Theophilus  Eaton,  Thomas  Goffe,  Thomas  Ad- 
ams, John  Brown,  Samuel  Brown,  Thomas  Hutchins,  Wil- 
liam Vassall,  William  Pincheon  and  George  Foxcroft,  and 
all  such  others  as  should  thereafter  be  admitted  and  made 
free  of  the  company  and  society  therein  after  mentioned, 
one  body  corporate  and  politic  in  fact  and  name  by  the  name 
of  the  Governor  and  Company  of  the  Massachusetts  Bay  in 
New  Kngland,  and  did  grant  unto  them  and  their  successors 
divers  powers,  liberties  and  privileges,  as  in  and  by  the  said 
letters  patent  may  more  fully  and  at  large  appear.  And 
whereas  the  said  Governor  and  company  of  the  Massachusetts 
Bay  in  New  England,  by  virtue  of  the  said  letters  patent,  did 
settle  a  colony  of  the  English  in  the  said  parts  of  America,  and 
divers  good  subjects  of  this  Kingdom  encouraged  and  invited 
by  the  said  letters  patent  did  transport  themselves  and  their 
effects  into  the  same,  whereby  the  said  plantation  did  become 
very  populous  and  divers  counties,  towns  and  places  were 
created,  erected,  made,  set  forth  or  designed  within  the  said 
parts  of  America  by  the  said  Governor  and  company  for  the 
time  being :  And  whereas  in  the  term  of  the  Holy  Trinity 
in  the  thirty-sixth  year  of  the  reign  of  our  dearest  uncle, 
King  Charles  the  Second,  a  judgment  was  given  in  our 
Court  of  Chancery  then  sitting  at  Winchester  upon  a  writ  of 
scire  facias  brought  and  prosecuted  in  the  said  Court  against 
the  Governor  and  Company  of  the  Massachusetts  Bay  in 
New  England,  that  the  said  letters  patent  of  our  said  royal 
grandfather  King  Charles  the  first,  bearing  date  at  West- 
minster the  fourth  day  of  March,  in  the  fourth  year  of  his 


OF  MASSACHUSETTS. 


393 


reigu,  made  and  grauted  to  the  said  Governor  and  Company 
of  the  Massachusetts  Ray  in  New  England  and  the  enrolment 
of  the  same  should  be  cancelled,  vacated  and  annihilated  and 
should  be  brought  into  the  said  Court  to  be  cancelled  (as  in 
and  by  the  said  judgment  remaining  upon  record  in  the  said 
Court  doth  more  at  large  appear)  :  And  whereas  several  per- 
sons employed  as  agents  in  behalf  of  our  said  colony  of  the 
Massachusetts  Bay  in  New  England  have  made  their  humble 
application  unto  us,  that  we  would  be  graciously  pleased  by 
our  royal  charter  to  incorporate  our  subjects  in  our  said 
colony  and  to  grant  and  confirm  unto  them  such  powers, 
privileges  and  f  ranchises  as  in  our  royal  wisdom  should  be 
thought  most  conducing  to  our  interest  and  service  and  to 
the  welfare  and  happy  state  of  our  subjects  in  New  Eng- 
land :  And  we  being  graciously  pleased  to  gratify  our  said 
subjects  and  also  to  the  end,  our  good  subjects  within  our 
Colony  of  New  Plymouth  iu  New  England  aforesaid,  may 
be  brought  under  such  a  form  of  government  as  may  put 
them  in  a  better  condition  of  defence,  and  considering  as  well 
the  granting  unto  them  as  unto  our  subjects  in  the  said  Col- 
ony of  the  Massachusetts  Bay,  our  royal  charter  with  rea- 
sonable powers  and  privileges,  will  much  tend  not  only  to 
the  safety  but  to  the  flourishing  estate  of  our  subjects  in 
the  said  parts  of  New  England  and  also  to  the  advancing 
of  the  ends  for  which  the  said  plantations  were  at  first  en- 
couraged ;  of  our  special  grace,  certain  knowledge  and  mere 
motion  have  willed  and  ordained  and  we  do  by  these  present, 
for  us,  our  heirs  and  successors  will  and  ordain  that  the  ter- 
ritories and  colonies  commonly  called  or  known  by  the  names 
of  the  Colony  of  the  Massachusetts  Bay  and  Colony  of  New 
Plymouth  the  province  of  Main,  the  territory  called  Accada 
or  Nova  Scotia ;  and  all  that  tract  of  land  lying  between 
the  said  territories  of  Nova  Scotia,  and  the  said  province  of 
Main,  be  erected,  united  and  incorporated  :  And  we  do  by 
these  presents  unite,  erect  and  incorporate  the  same  into  one 
real  province  by  the  name  of  our  province  of  the  Massa- 
chusetts Bay  in  New  England ;  and  of  our  especial  grace, 


394 


JUDICIAL  HISTORY 


certain  knowledge  and  mere  motion  we  have  given  and 
granted  and  by  these  presents  for  us,  our  heirs  and  succes- 
sor do  give  and  grant  unto  our  good  subjects  the  inhabi- 
tants of  our  said  province  or  territory  of  the  Massachusetts 
Bay  and  their  successors  all  that  part  of  New  England  in 
America  lying  and  extending  from  the  great  river  commonly 
called  Monomack  alias  Merimack  on  the  North  part  and 
from  three  miles  Northward  of  the  said  river  to  the  Atlantic 
or  western  sea  or  ocean  on  the  South  part,  and  all  the  lands 
and  hereditaments  whatsoever  lying  within  the  limits  afore- 
said and  extending  as  far  as  the  outermost  points  or  prom- 
ontories of  land  called  Cape  Cod  and  Cape  Malabar  North 
and  South,  and  in  latitude,  breadth  and  in  length  and  longi- 
tude of  and  within  all  the  breadth  and  compass  aforesaid 
throughout  the  main  land  there  from  the  said  Atlantic  or 
Western  sea  and  ocean  on  the  East  part,  towards  the  South 
Sea  or  Westward  as  far  as  our  Colonies  of  Rhode  Island, 
Connecticut  and  the  Narragansett  Country  :  And  also  all 
that  part  and  portion  of  mainland  beginning  at  the  entrance 
of  Piscataway  harbor,  and  so  to  pass  up  the  same  into  the 
river  of  Newichwannock  and  through  the  same  into  the 
furthest  head  thereof,  and  from  thence  Northwestward  till 
one  hundred  and  twenty  miles  be  finished,  and  from  Pisca- 
taway harbor  mouth  aforesaid  Northeastward  along  the  sea 
coast  to  Sagadehock,  and  from  the  period  of  one  hundred 
and  twenty  miles  aforesaid  to  cross  over  land  to  the  one 
hundred  and  twenty  miles  before  reckoned,  up  into  the  land 
from  Piscataway  harbor  through  Newichwannock  river  and 
also  the  North  half  of  the  Isles  of  Shoals,  together  with  the 
Isles  of  Capawock  and  Nantucket  near  Cape  Cod  aforesaid, 
and  also  the  lands  and,  hereditaments  lying  and  being  in  the 
country  or  territory  commonly  called  Accada  or  Nova  Scotia, 
and  all  those  lands  and  hereditaments  lying  and  extending 
between  the  said  country  or  territory  of  Nova  Scotia  and  the 
said  river  of  Sagadehock  or  any  part  thereof  :  and  all  lands, 
grounds,  places,  soils,  woods  and  wood  grounds,  havens, 
ports,  rivers,  waters  and  other  hereditaments  and  premises 


OF  MASSACHUSETTS. 


395 


whatsoever  lying  within  the  said  bounds  and  limits  afore- 
said and  every  part  and  parcel  thereof :  and  also  all  islands 
and  islets  lying  within  ten  leagues  directly  opposite  to  the 
main  land  within  the  said  bounds :  and  all  mines  and  min- 
erals, as  well  royal  mines  of  gold  and  silver  as  other  mines 
and  minerals  whatsoever  in  the  said  lands  and  premises  or 
any  part  thereof.  To  have  and  to  hold  the  said  territories, 
tracts,  countries,  lands,  hereditaments  and  all  and  singular 
other  the  premises  with  them  and  every  of  their  appurte- 
nances to  our  said  subjects,  the  inhabitants  of  our  said  prov- 
ince of  the  Massachusetts  Bay  in  New  England  and  their 
successors  to  their  only  proper  use  and  behoof  for  evermore 
to  be  holden  of  us,  our  heirs  and  successors  as  of  our  manor 
of  East  Greenwich,  in  the  County  of  Kent,  by  fealty  only 
in  free  and  common  socage,  yielding  and  paying  therefor 
yearly  to  us,  our  heirs  and  successors,  the  fifth  part  of  all 
gold  and  silver  ore  and  precious  stones  which  shall  from 
time  to  time,  and  at  all  times  hereafter,  happen  to  be  found, 
gotten,  had  and  obtained  in  any  of  the  said  lands  and  prem- 
ises or  within  any  part  thereof  :  Provided,  nevertheless,  and 
we  do  for  us,  our  heirs  and  successors  grant  and  ordain  that 
all  and  every  such  lands,  tenements  and  hereditaments,  and 
all  other  estates  which  any  person  or  persons,  or  bodies  pol- 
itic or  corporate,  towns,  villages,  colleges  or  schools  do  hold 
and  enjoy,  or  ought  to  hold  and  enjoy,  within  the  bounds 
aforesaid,  by  or  under  any  grant  or  estate  duly  made  or 
granted  by  any  general  court  formerly  held,  or  by  virtue  of 
the  letters  patent  hereinbefore  recited,  or  by  any  other  law- 
ful right  or  title  whatsoever,  shall  be  by  such  person  or  per- 
sons, bodies  politic  and  corporate,  towns,  villages,  colleges 
or  schools,  their  respective  heirs,  successors  and  assigns 
forever  hereafter  held  and  enjoyed  according  to  the  purport 
and  intent  of  such  respective  grant,  under  and  subject 
nevertheless  to  the  rents  and  services  thereby  reserved  or 
made  payable,  any  matter  or  thing  whatsoever  to  the  con- 
trary notwithstanding.  And  provided  also,  That  nothing 
herein  contained  shall  extend,  or  be  understood  or  taken  to 


396 


JUDICIAL  HISTORY 


impeach  or  prejudice,  any  right,  title,  interest  or  demand 
which  Samuel  Allen  of  London,  merchant,  claiming  from 
and  under  John  Mason,  Esq.,  deceased,  or  any  other  per- 
son or  persons,  hath  or  have  or  claimeth  to  have,  hold  or 
enjoy  of,  into  or  out  of  any  part  or  parts  of  the  premises 
situate  within  the  limits  above  mentioned  ;  but  that  the  said 
Samuel  Allen,  and  all  and  every  such  person  and  persons, 
may  and  shall  have,  hold  and  enjoy  the  same  in  such  man- 
ner (and  no  other  than)  as  if  these  presents  had  not  been 
had  or  made.  It  being  our  further  will  and  pleasure  That 
no  grants  or  conveyances  of  any  lands,  tenements  or  here- 
ditaments, to  any  towns,  colleges,  schools  of  learning,  or  to 
any  private  person  or  persons,  shall  be  judged  or  taken  to 
be  avoided  or  prejudiced  for  or  by  reason  of  any  want  or 
defect  of  form,  but  that  the  same  stand  and  remain  in  force 
and  be  maintained,  adjudged  and  have  effect  in  the  same 
manner  as  the  same  should  or  ought  before  the  time  of  the 
said  recited  judgment  according  to  the  laws  and  rules  then 
and  there  usually  practiced  and  allowed.  And  we  do  fur- 
ther, for  us,  our  heirs  and  successors,  will,  establish  and 
ordain,  That  from  henceforth  forever  there  shall  be  one 
governor,  one  lieutenant  or  deputy  governor,  and  one  secre- 
tary of  our  said  province  or  territory,  to  be  from  time  to 
time  appointed  and  commissionated  by  us,  our  heirs  and 
successors,  and  eight  and  twenty  assistants  or  counsellors 
to  be  advising  and  assisting  to  the  Governor  of  our  said 
province  or  territory  for  the  time  being,  as  by  these  presents 
is  hereafter  directed  and  appointed ;  which  said  counsellors 
or  assistants  are  to  be  constituted,  elected  and  chosen  in 
such  form  and  manner  as  hereafter  in  these  presents  is  ex- 
pressed. And  for  the  better  execution  of  our  royal  pleas- 
ure and  grant  in  this  behalf,  .we  do  by  these  presents,  for 
us,  our  heirs  and  successors,  nominate,  ordain,  make  and 
constitute  our  trusty  and  well  beloved  Simon  Bradstreet, 
John  Richards,  Nathaniel  Saltonstall,  Wait  Winthrop,  John 
Phillips,  James  Russell,  Samuel  Sewall,  Samuel  Appleton, 
Bartholomew  Gedney,  John  Hathorn,  Elisha  Hutchinson, 


OF  MASSACHUSETTS. 


397 


Robert  Pike,  Jonathan  Corwin,  John  Jolliffe,  Adam  Win- 
throp,  Richard  Middlecot,  John  Foster,  Peter  Sergeant, 
John  Lynde,  Samuel  Heyman,  Stephen  Mason,  Thomas 
Hinkley,  William  Bradford,  John  Walley,  Barnabas  Lo- 
throp,  Job  Alcot,  Samuel'Daniel  and  Sylvanus  Davis,  Esqs., 
the  first  and  present  counsellors,  or  assistants  of  our  said 
province  ;  to  continue  in  the  said  respective  offices  or  trusts 
of  counsellors  or  assistants  until  the  last  Wednesday  in 
May  which  shall  be  in  the  year  of  our  Lord  one  thousand 
six  hundred  ninety  and  three  and  until  other  counsellors  or 
assistants  shall  be  chosen  and  appointed  in  their  stead  in 
such  manner  as  in  these  presents  is  expressed.  And  we  do 
further  by  these  presents  constitute  and  appoint  our  trusty 
and  well  beloved  Isaac  Addington,  Esq.,  to  be  our  first  and 
present  secretary  of  our  said  province  during  our  pleasure. 
And  our  will  and  pleasure  is  that  the  governor  of  our  said 
province  for  the  time  being  shall  have  authority  from  time 
to  time  at  his  discretion  to  assemble  and  call  together  the 
counsellors  or  assistants  of  our  said  province  for  the  time 
being :  And  that  the  said  governor  with  the  said  assistants 
or  counsellors  or  seven  of  them  at  the  least  shall  and  may 
from  time  to  time  hold  and  keep  a  council  for  the  ordering 
and  directing  the  affairs  of  our  said  province.  And  further 
we  will  and  by  these  presents,  for  us,  our  heirs  and  successors, 
do  ordain  and  grant  that  there  shall  and  may  be  convened, 
held  and  kept  by  the  governor  for  the  time  being  upon  every 
last  Wednesday  in  the  month  of  May  every  year  for  ever, 
and  at  all  such  other  times  as  the  governor  of  our  said  prov- 
ince shall  think  fit  and  appoint  a  great  and  general  court  or 
assembly ;  which  said  great  and  general  court  or  assembly 
shall  consist  of  the  governor  and  council  or  assistants  for  the 
time  being,  and  of  such  freeholders  of  our  said  province  or 
territory  as  shall  be  from  time  to  time  elected  or  deputed  by 
the  major  part  of  the  freeholders  and  other  inhabitants  of 
the  respective  towns  or  places  who  shall  be  present  at  such 
elections ;  each  of  the  said  towns  and  places  being  hereby 
empowered  to  elect  and  depute  two  persons  and  no  more  to 


398 


JUDICIAL  HISTORY 


serve  for  and  represent  them  respectively  in  the  said  great  and 
general  court  or  assembly.  To  which  great  and  general  court 
or  assembly  to  be  held  as  aforesaid  we  do  hereby  for  us,  our 
heirs  and  successors,  give  and  grant  full  power  and  authority 
from  time  to  time  to  direct,  appoint  and  declare  what  num- 
ber each  county,  town  and  place  shall  elect  and  depute  to 
serve  for  and  represent  them  respectively  in  the  said  great 
and  general  court  or  assembly.  Provided  always  that  no 
freeholder  or  other  person  shall  have  a  vote  in  the  election 
of  members  to  serve  in  any  great  or  general  court  or  assem- 
bly to  be  held  as  aforesaid,  who  at  the  time  of  such  election 
shall  not  have  an  estate  of  freehold  in  land  within  our  said 
province  or  territory  to  the  value  of  forty  shillings  per  an- 
num at  the  least :  or  other  estate  to  the  value  of  forty  pounds 
sterling  :  and  that  every  person  who  shall  be  so  elected  shall 
before  he  sit  or  act  in  the  said  great  and  general  court  or 
assembly  take  the  oaths  mentioned  in  an  act  of  parliament 
made  in  the  first  year  of  our  reign  entitled,  An  act  for  ab- 
rogating of  the  oaths  of  allegiance  and  supremacy,  and 
appointing  other  oaths  and  thereby  appointed  to  be  taken 
instead  of  the  oaths  of  allegiance  and  supremacy :  and  shall 
make,  repeat  and  subscribe  the  declaration  mentioned  in 
the  said  act  before  the  governor  or  lieutenant  or  deputy 
governor  or  any  two  of  the  assistants  for  the  time  being 
who  shall  be  thereunto  authorized  and  appointed  by  our 
said  governor.  And  that  the  governor  for  the  time  being 
shall  have  full  power  and  authority  from  time  to  time  as  he 
shall  judge  necessary  to  adjourn,  prorogue  and  dissolve  all 
great  and  general  courts  or  assemblies  met  and  convened  as 
aforesaid.  And  our  will  and  pleasure  is  and  we  do  hereby 
for  us,  our  heirs  and  successors,  grant,  establish  and  ordain 
that  yearly  once  in  every  year  forever  hereafter  the  afore- 
said number  of  eight  and  twenty  counsellors  or  assistants 
shall  be  by  the  general  court  or  assembly  newly  chosen ;  that 
is  to  say,  eighteen  at  least  of  the  inhabitants  of,  or  proprie- 
tors of,  lands  within  the  territory  formerly  called  the  Colony 
of  the  Massachusetts  Bay  ;  and  four  at  the  least  of  the  in- 


OF  MASSACHUSETTS. 


399 


habitants  of,  or  proprietors  of,  lands  witkin  the  territory 
formerly  called  New  Plymouth ;  and  three  at  the  least  of 
the  inhabitants  of,  or  proprietors  of,  land  within  the  terri- 
tory formerly  called  the  Province  of  Main ;  and  one  at  the 
least  of  the  inhabitants  of,  or  proprietors  of,  land  within 
the  territory  lying  between  the  river  of  Sagadehock  and 
Nova  Scotia ;  and  that  the  said  counsellors  or  assistants  or 
any  of  them  shall  or  may  at  any  time  hereafter  be  removed 
or  displaced  from  their  respective  places  or  trust  of  coun- 
sellors or  assistants  by, any  great  or  general  court  or  assem- 
bly ;  and  that  if  any  of  the  said  counsellors  or  assistants 
shall  happen  to  die  or  be  removed  as  aforesaid  before  the 
general  day  of  election,  that  then  and  in  every  such  case 
the  great  and  general  court  or  assembly  at  their  first  sitting 
may  proceed  to  a  new  election  of  one  or  more  counsellors 
or  assistants  in  the  room  or  place  of  such  counsellors  or  as- 
sistants so  dying  or  removed.  And  we  do  further  grant 
and  ordain  that  it  shall  and  may  be  lawful  for  the  said  gov- 
ernor, with  the  advice  and  consent  of  the  council  or  assist- 
ants, from  time  to  time  to  nominate  and  appoint  judges, 
commissioners  of  oyer  and  terminer,  sheriffs,  provosts,  mar- 
shals, justices  of  the  peace  and  other  officers,  to  our  council 
and  courts  of  justice  belonging :  Provided  always  that  no 
such  nomination  or  appointment  of  officers  be  made  without 
notice  first  given  or  summons  issued  out  seven  days  before 
such  nomination  or  appointment  unto  such  of  the  said 
counsellors  or  assistants  as  shall  be  at  that  time  residing 
within  onr  said  province.  And  our  will  and  pleasure  is 
that  the  governor  and  lieutenant  or  deputy  governor  and 
counsellors  and  assistants  for  the  time  being,  and  all  other 
officers  to  be  appointed  or  chosen  as  aforesaid  shall  before 
the  undertaking  the  execution  of  their  offices  and  places 
respectively  take  their  several  and  respective  oaths  for  the 
due  and  faithful  performance  of  their  duties  in  their  several 
and  respective  offices  and  places ;  and  also  the  oaths  ap- 
pointed by  the  said  act  of  parliament  made  in  the  first  year 
of  our  reign  to  be  taken  instead  of  the  oaths  of  allegiance 


400 


JUDICIAL  HISTORY 


and  supremacy;  and  shall  make,  repeat  and  subscribe  the 
declaration  mentioned  in  the  said  act  before  such  person  or 
persons  as  are  by  these  presents  hereinafter  appointed  :  (that 
is  to  say)  the  governor  of  our  said  province  or  territory  for 
the  time  being  shall  take  the  said  oaths  and  make,  repeat 
and  subscribe  the  said  declaration  before  the  lieutenant  or 
deputy  governor,  or  in  his  absence  before  any  two  or  more 
of  the  said  persons  hereby  nominated  and  appointed  the 
present  counsellors  or  assistants  of  our  said  province  or  ter- 
ritory, to  whom  we  do  by  these  presents  give  full  power  and 
authority  to  give  and  administer  the  same  to  our  said  gov- 
ernor accordingly.  And  after  our  said  governor  shall  be 
sworn  and  shall  have  subscribed  the  said  declaration  that 
then  our  lieutenant  or  deputy  governor  for  the  time  being 
and  the  counsellors  or  assistants  before  by  these  presents 
nominated  and  appointed  shall  take  the  said  oaths  and  make, 
repeat  and  subscribe  the  said  declaration  before  our  said 
governor ;  and  that  every  such  person  or  persons  as  shall 
(at  any  time  of  the  annual  elections  or  otherwise  upon 
death  or  removal)  be  appointed  to  be  the  new  counsellors 
or  assistants,  and  all  other  officers  to  be  hereafter  chosen 
from  time  to  time  shall  take  the  oaths  to  their  respective  offices 
and  places  belonging ;  and  also  the  said  oaths  appointed  by 
the  said  act  of  parliament  to  be  taken  instead  of  the  oaths 
of  allegiance  and  supremacy ;  and  shall  make,  repeat  and 
subscribe  the  declaration  mentioned  in  the  said  act  before  the 
governor,  or  lieutenant  or  deputy  governor  or  any  two  or 
more  counsellors  or  assistants ;  or  such  other  person  or  per- 
sons as  shall  be  appointed  thereunto  by  the  governor  for  the 
time  being ;  to  whom  we  do  therefore  by  these  presents  give 
full  power  and  authority  from  time  to  time  to  give  and  ad- 
minister the  same  respectively  according  to  our  true  mean- 
ing hereinbefore  declared  without  any  commission  or  fur- 
ther warrant  to  be  had  and  obtained  from  us,  our  heirs  and 
successors,  in  that  behalf.  And  our  will  and  pleasure  is, 
and  we  do  hereby  require  and  command  that  all  and  any  per- 
son and  persons  hereafter  by  us,  our  heirs  and  successors, 


OF  MASSACHUSETTS. 


401 


nominated  and  appointed  to  the  respective  offices  of  governor 
or  lieutenant  or  deputy  governor  and  secretary  of  our  said 
province  or  territory  (which  said  governor  or  lieutenant 
or  deputy  governor  and  secretary  of  our  said  province  or 
territory  for  the  time  being  we  do  hereby  reserve  full  power 
and  authority  to  us,  our  heirs  and  successors  to  nominate 
and  appoint  accordingly)  shall,  before  he  or  they  be  ad- 
mitted to  the  execution  of  their  respective  offices,  take  as 
well  the  oath  for  the  due  and  faithful  performance  of  the 
said  offices  respectively  as  also  the  oaths  appointed  by  the 
said  act  of  parliament  made  in  the  said  first  year  of  our 
reign,  to  be  taken  instead  of  the  said  oaths  of  allegiance 
and  supremacy ;  and  shall  also  make,  repeat  and  subscribe 
the  declaration  appointed  by  the  said  act  in  such  manner 
and  before  such  persons  as  aforesaid.  And  further  our  will 
and  pleasure  is,  and  we  do  hereby  for  us,  our  heirs  and  suc- 
cessors, grant,  establish  and  ordain  that  all  and  every  of 
the  subjects  of  us,  our  heirs  and  successors,  which  shall  go 
to  and  inhabit  within  our  said  province  and  territory,  and 
every  of  their  children  which  shall  happen  to  be  born  there 
or  on  the  seas,  in  going  thither  or  returning  from  thence, 
shall  have  and  enjoy  all  liberties  and  immunities  of  free  and 
natural  subjects  within  any  of  the  dominions  of  us,  our  heirs 
and  successors  to  all  intents,  constructions  and  purposes 
whatsoever,  as  if  they  and  every  of  them  were  born  within 
this  our  realm  of  England.  And  for  the  greater  ease  and 
encouragement  of  our  loving  subjects  inhabiting  our  said 
province  or  territory  of  the  Massachusetts  Bay  and  of  such 
as  shall  come  to  inhabit  there,  we  do  by  these  presents,  for 
us,  our  heirs  and  successors,  grant,  establish  and  ordain 
that  forever  hereafter  there  shall  be  a  liberty  of  conscience 
allowed  in  the  worship  of  God  to  all  Christians  (except 
papists)  inhabiting,  or  which  shall  inhabit  or  be  resident 
within  our  said  province  or  territory.  And  we  do  hereby 
grant  and  ordain  that  the  governor  or  lieutenant  or  deputy 
governor  of  our  said  province  or  territory,  for  the  time  being, 
or  either  of  them,  or  any  two  or  more  of  the  council  or  as- 
26 


402 


JUDICIAL  HISTORY 


sistants  for  the  time  being  as  shall  be  thereunto  appointed 
by  tbe  said  governor,  shall  and  may  at  all  times,  and  from 
time  to  time  hereafter,  have  full  power  and  authority  to  ad- 
minister and  give  the  oaths  appointed  by  the  said  act  of  par- 
liament made  in  the  first  year  of  our  reign  to  be  taken  in- 
stead of  the  oaths  of  allegiance  and  supremacy  to  all  and 
every  person  and  persons  which  are  now  inhabiting  or  re- 
siding within  our  said  province  or  territory,  or  which  shall 
at  any  time  or  times  hereafter,  go  or  pass  thither.  And  we 
do  of  our  further  grace,  certain  knowledge  and  mere  motion 
grant,  establish  and  ordain  for  us,  our  heirs  and  successors 
that  the  great  and  general  court  or  assembly  of  our  said 
province  or  territory  for  the  time  being  convened  as  afore- 
said, shall  forever  have  full  power  and  authority  to  erect  and 
constitute  judicatories  and  courts  of  record  or  other  courts 
to  be  held  in  the  name  of  us,  our  heirs  and  successors,  for 
the  hearing,  trying  and  determining  of  all  manner  of  crimes, 
offences,  pleas,  processes,  plaints,  actions,  matters,  causes 
and  things  whatsoever  arising  or  happening  within  our  said 
province  or  territory,  or  between  persons  inhabiting  or  re- 
siding there,  whether  the  same  be  criminal  or  civil,  and 
whether  the  said  crimes  be  capital  or  not  capital,  and  whether 
the  said  pleas  be  real,  personal  or  mixt,  and  for  the  award- 
ing and  making  out  of  execution  thereupon :  To  which 
courts  and  judicatories  we  do  hereby  for  us,  our  heirs  and 
successors  give  and  grant  full  power  and  authority  from 
time  to  time  to  administer  oaths  for  the  better  discovery  of 
truth  in  any  matter  in  controversy  or  defending  before 
them.  And  we  do  for  us,  our  heirs  and  successors,  grant, 
establish  and  ordain  that  the  governor  of  our  said  province 
or  territory  for  the  time  being,  with  the  council  or  assist- 
ants may  do,  execute  or  perform  all  that  is  necessary  for 
the  probate  of  wills  and  granting  of  administrations  for, 
touching  or  concerning  any  interests  or  estate  which  any 
person  or  persons  shall  have  within  our  said  province  or 
territory  :  And  whereas  we  judge  it  necessary  that  all  our 
subjects  should  have  liberty  to  appeal  to  us,  our  heirs  and 


OF  MASSACHUSETTS. 


403 


successors  in  cases  that  may  deserve  the  same,  we  do  by 
these  presents  ordain  that  in  case  either  party  shall  not 
rest  satisfied  with  the  judgment  or  sentence  of  any  judica- 
tories or  courts  within  our  said  province  or  territory,  in  any 
personal  action  wherein  the  matter  in  difference  doth  exceed 
the  value  of  three  hundred  pounds  sterling,  that  then  he  or 
they  may  appeal  to  us,  our  heirs  and  successors  in  our  or 
their  privy  council.  Provided  such  appeal  be  made  within 
fourteen  days  after  the  sentence  or  judgment  given ;  and 
that  before  such  appeal  be  allowed,  security  be  given  by  the 
party  or  parties  appealing  in  the  value  of  the  matter  iu  dif- 
ference, to  pay  or  answer  the  debt  or  damages,  for  the 
which  judgment  or  sentence  is  given  with  such  costs  and 
damages  as  shall  be  awarded  by  us,  our  heirs  or  successors, 
in  case  the  judgment  or  sentence  be  affirmed  :  And  provided 
also  that  no  execution  shall  be  staid  or  suspended  by  reason 
of  such  appeal  unto  us,  our  heirs  and  successors,  in  our  or 
their  privy  council,  so  as  the  party  suing  or  taking  out  exe- 
cution do  in  the  like  manner  give  security  to  the  value  of  the 
matter  iu  difference  to  make  restitution  in  case  the  said  judg- 
ment or  sentence  be  reversed  or  annulled  upon  the  said  appeal. 
And  we  do  further,  for  us,  our  heirs  and  successors,  give 
and  grant  to  the  said  governor  and  the  great  and  general 
court  or  assembly  of  our  said  province  or  territory  for  the 
time  being,  full  power  and  authority,  from  time  to  time,  to 
make,  ordain  and  establish  all  manner  of  wholesome  and 
reasonable  orders,  laws,  statutes  and  ordinances,  directions 
and  instructions,  either  with  penalties  or  without  (so  as  the 
same  be  not  repugnant  or  contrary  to  the  laws  of  this  our 
realm  of  England),  as  they  shall  judge  to  be  for  the  good 
and  welfare  of  our  said  province  or  territory,  and  for  the 
government  and  ordering  thereof,  and  of  the  people  inhabit- 
ing, or  who  shall  inhabit  the  same,  and  for  the  necessary 
support  and  defence  of  the  government  thereof.  And  we 
do,  for  us,  our  heirs  and  successors,  give  and  grant  that 
the  said  general  court  or  assembly  shall  have  full  power 
and  authority  to  name  and  settle  annually  all  such  officers 


404 


JUDICIAL  HISTORY 


within  the  said  province,  such  officers  excepted,  the  elec- 
tion and  constitution  of  whom  we  have  by  these  presents 
reserved  to  us,  our  heirs  and  successors,  or  to  the  governor 
of  our  said  province  for  the  time  being ;  and  to  set  forth 
the  several  duties,  powers  and  limits  of  every  such  officer 
to  be  appointed  by  the  said  general  court  or  assembly; 
and  the  forms  of  such  oaths  not  repugnant  to  the  laws 
and  statutes  of  this  our  realm  of  England,  as  shall  be 
respectively  administered  unto  them  for  the  execution  of 
their  several  offices  and  places ;  and  also  to  impose  fines, 
mulcts,  imprisonments  and  other  punishments ;  and  to  im- 
pose and  levy  proportionable  and  reasonable  assessments, 
rates  and  taxes  upon  the  estates  and  persons  of  all  and  every 
the  proprietors  and  inhabitants  of  our  said  province  or  ter- 
ritory, to  be  issued  and  disposed  of  by  warrant  under  the 
hand  of  the  governor  of  our  said  province  for  the  time  being 
with  the  advice  and  consent  of  the  council  for  our  service  in 
the  necessary  defence  and  support  of  our  government  of  our 
said  province  or  territory,  and  the  protection  and  preserva- 
tion of  the  inhabitants  there,  according  to  such  acts  as  are 
or  shall  be  in  force  within  our  said  province  ;  and  to  dispose 
of  matters  and  things  whereby  our  subjects,  inhabitants  of 
our  said  province,  may  be  religiously,  peaceably  and  civilly 
governed,  protected  and  defended  ;  so  as  their  good  life  and 
orderly  conversation  may  win  the  Indian  natives  of  the 
country  to  the  knowledge  and  obedience  of  the  only  true 
God  and  Saviour  of  mankind  and  the  Christian  faith,  which 
his  royal  majesty,  our  royal  grandfather  King  Charles  the 
first,  in  his  said  letters  patent  declared  was  his  royal  inten- 
tion and  the  adventurers'  free  confession  to  be  the  principal 
end  of  the  said  plantation.  And  for  the  better  securing  and 
maintaining  liberty  of  conscience  hereby  granted  to  all  per- 
sons at  any  time  being  and  residing  within  our  said  prov- 
ince or  territory  as  aforesaid,  willing,  commanding  and 
requiring  and  by  these  presents  for  us,  our  heirs  and  succes- 
sors, ordaining  and  appointing  that  all  such  orders,  laws, 
statutes  and  ordinances,  instructions  and  directions  as  shall 


OF  MASSACHUSETTS. 


405 


be  so  made  and  published  under  our  seal  of  our  said  prov- 
ince or  territory  shall  be  carefully  and  duly  observed,  kept 
and  performed  and  put  in  execution  according  to  the  true 
intent  and  meaning  of  these  presents.  Provided  always, 
and  we  do  by  these  presents  for  us,  our  heirs  and  successors, 
establish  and  ordain  that  in  the  framing  and  passing  of  all 
such  orders,  laws,  statutes  and  ordinances  and  in  all  elec- 
tions and  acts  of  government  whatsoever,  to  be  passed,  made 
or  done  by  the  said  general  court  or  assembly  or  in  council, 
the  governor  of  our  said  province  or  territory  of  the  Massa- 
chusetts Bay  in  New  England  for  the  time  being  shall  have 
the  negative  voice ;  and  that  without  his  consent  or  appro- 
bation signified  and  declared  in  writing,  no  such  orders, 
laws,  statutes,  ordinances,  elections  or  other  acts  of  govern- 
ment whatsoever,  so  to  be  made,  passed  or  done  by  the  said 
general  assembly  or  in  council  shall  be  of  any  force,  effect 
or  validity  ;  anything  herein  contained  to  the  contrary  in  any 
wise  notwithstanding.  And  we  do,  for  us,  our  heirs  and 
successors,  establish  and  ordain  that  the  said  orders,  laws, 
statutes  and  ordinances  be  by  the  first  opportunity  after  the 
making  thereof  sent  or  transmitted  unto  us,  our  heirs  and 
successors,  under  the  public  seal  to  be  appointed  by  us,  for 
our  or  their  approbation  or  disallowance.  And  that  in  case 
all  or  any  of  them  shall  at  any  time  within  the  space  of  three 
years  next  after  the  same  shall  have  been  presented  to  us, 
our  heirs  and  successors,  in  our  or  their  privy  council,  be 
disallowed  and  rejected  and  so  signified  by  us,  our  heirs  and 
successors,  under  our  or  their  sign  manual  and  signet,  or  by 
or  in  our  or  their  privy  council  unto  the  governor  for  the 
time  being,  then  such  and  so  many  of  them  as  shall  be  so 
disallowed  and  rejected  shall  thenceforth  cease  and  deter- 
mine and  become  utterly  void  and  of  none  effect.  Provided 
always  that  in  case  we,  our  heirs  or  successors  shall  not 
within  the  term  of  three  years  after  the  presenting  of  such 
orders,  laws,  statutes  or  ordinances  as  aforesaid  signify  our 
or  their  disallowance  of  the  same,  then  the  said  orders,  laws, 
statutes  or  ordinances  shall  be  and  continue  in  full  force 


406 


JUDICIAL  HISTORY 


and  effect  according  to  the  true  intent  and  meaning  of  the 
same,  until  the  expiration  thereof,  or  that  the  same  shall  be 
repealed  by  the  general  assembly  of  our  said  province  for 
the  time  being.  Provided  also  that  it  shall  and  may  be 
lawful  for  the  said  governor  and  general  assembly  to  make 
or  pass  any  grant  of  lands  lying  within  the  bounds  of  the 
colonies  formerly  called  the  colonies  of  the  Massachusetts 
Bay  and  New  Plymouth  and  province  of  Main  in  such  man- 
ner as  heretofore  they  might  have  done  by  virtue  of  any 
former  charter  or  letters  patent ;  which  grants  of  lands 
within  the  bounds  aforesaid  we  do  hereby  will  and  ordain  to 
be  and  continue  for  ever  of  full  force  and  effect  without  our 
further  approbation  or  consent.  And  so  as  nevertheless, 
and  it  is  our  royal  will  and  pleasure  that  no  grant  or  grants 
of  any  lands  lying  or  extending  from  the  river  of  Sagade- 
hock  to  the  Gulf  of  St.  Lawrence  and  Canada  rivers  and  to 
the  main  sea  northward  and  eastward  to  be  made  or  passed 
by  the  governor  and  general  assembly  of  our  said  province, 
be  of  any  force,  validity  or  effect  until  we,  our  heirs  or  suc- 
cessors shall  have  signified  our  or  their  approbation  of  the 
same.  And  we  do  by  these  presents  for  us,  our  heirs  and 
successors,  grant,  establish  and  ordain  that  the  governor  of 
our  said  province  or  territory  for  the  time  being  shall  have 
full  power  by  himself  or  by  any  chief  commander  or  other 
officer  or  officers  to  be  appointed  by  him  from  time  to  time 
to  train,  instruct,  exercise  and  govern  the  militia  there ; 
and  for  the  special  defence  and  safety  of  our  said  province 
or  territory  to  assemble  in  martial  array  and  put  in  warlike 
posture  the  inhabitants  of  our  said  province  or  territory, 
and  to  lead  and  conduct  them,  and  with  them  to  encounter, 
expulse,  repel,  resist  and  pursue  by  force  of  arms  as  well 
by  sea  as  by  land,  within  or  without  the  limits  of  our  said 
province  or  territory,  and  also  to  kill,  slay,  destroy  and 
conquer  by  all  fitting  ways,  enterprises  and  means  what- 
soever all  and  every  such  person  and  persons  as  shall  at 
any  time  hereafter  attempt  or  enterprise  the  destruction, 
invasion,  detriment  or  annoyance  of  our  said  province  or 


OF  MASSACHUSETTS. 


407 


territory ;  and  to  use  and  exercise  the  law  martial  in  time  of 
actual  war,  invasion  or  rebellion  as  occasion  shall  necessarily 
require  ;  and  also  from  time  to  time  to  erect  forts  and  to 
fortify  any  place  or  places  within  our  said  province  or  terri- 
tory and  the  same  to  furnish  with  all  necessary  ammunition, 
provisions  and  stores  of  war  for  offence  or  defence,  and  to 
commit  from  time  to  time  the  custody  and  government  of 
the  same  to  such  person  or  persons  as  to  him  shall  seem 
meet;  and  the  said  forts  and  fortifications  to  demolish  at 
his  pleasure,  and  to  take  and  surprise  by  all  ways  and  means 
whatsoever  all  and  every  such  person  or  persons,  with  their 
ships,  arms,  ammunition  and  other  goods  as  shall  in  a  hos- 
tile manner  invade  or  attempt  the  invading,  conquering  or 
annoying  of  our  said  province  or  territory.  Provided  al- 
ways and  we  do  by  these  presents  for  us,  our  heirs  and  suc- 
cessors, grant,  establish  and  ordain  that  the  said  governor 
shall  not  at  any  time  hereafter,  by  virtue  of  any  power  hereby 
granted  or  hereafter  to  be  granted  to  him,  transport  any  of 
the  inhabitants  of  our  said  province  or  territory  or  oblige 
them  to  march  out  of  the  limits  of  the  same  without  their 
free  and  voluntary  consent  or  the  consent  of  the  great  and 
general  court  or  assembly  of  our  said  province  or  territory ; 
nor  grant  commissions  for  exercising  the  law  martial  upon 
any  the  inhabitants  of  our  said  province  or  territory  without 
the  advice  and  consent  of  the  council  or  assistants  of  the 
same.  Provided  in  like  manner  and  we  do  by  these  presents 
for  us,  our  heirs  and  successors,  constitute  and  ordain  that 
when  and  as  often  as  the  governor  of  our  said  province  for 
the  time  being,  shall  happen  to  die  or  be  displaced  by  us, 
our  heirs  and  successors,  or  be  absent  from  his  government ; 
that  then  and  in  any  of  the  said  cases  the  lieutenant  or 
deputy  governor  of  our  said  province  for  the  time  being 
shall  have  full  power  and  authority  to  do  and  execute  all 
and  every  such  acts,  matters  and  things  which  our  governor 
of  our  said  province  for  the  time  being  might  or  could  by 
virtue  of  these  our  letters  patent  lawfully  do  or  execute  if  he 
were  personally  present,  until  the  return  of  the  governor  so 


408 


JUDICIAL  HISTORY 


absent,  or  the  arrival  or  constitution  of  such  other  governor  as 
shall  or  may  be  appointed  by  us,  our  heirs  or  successors,  in  his 
stead :  And  that  when  and  as  often  as  the  governor  and  lieuten- 
ant or  deputy  governor  of  our  said  province  or  territory  for 
the  time  being  shall  happen  to  die  or  be  displaced  by  us,  our 
heirs  or  successors  or  be  absent  from  our  said  province  ; 
and  that  there  shall  be  no  person  within  the  said  province 
commissionated  by  us,  our  heirs  or  successors  to  be  gov- 
ernor within  the  same ;  then  and  in  every  of  the  said  cases 
the  council  or  assistants  of  our  said  province  shall  have 
full  power  and  authority,  and  we  do  hereby  give  and  grant 
unto  the  said  council  or  assistants  of  our  said  province  for 
the  time  being,  or  the  major  part  of  them,  full  power  and 
authority  to  do  and  execute  all  and  every  such  acts,  mat- 
ters and  things  which  the  said  governor  or  lieutenant  or 
deputy  governor  of  our  said  province  or  territory  for  the 
time  being  might  or  could  lawfully  do  or  exercise,  if  they 
or  either  of  them  were  personally  present  until  the  return  of 
the  governor,  lieutenant  or  deputy  governor  as  shall  and 
may  be  appointed  by  us,  our  heirs  and  successors  from  time 
to  time.  Provided  always  and  it  is  hereby  declared  that 
nothing  herein  shall  extend  or  be  taken  to  erect  or  grant  or 
allow  the  exercise  of  any  admiral  court  jurisdiction,  power 
or  authority,  but  that  the  same  shall  be  and  is  hereby  re- 
served to  us  and  our  successors,  and  shall  from  time  to  time 
be  erected,  granted  and  exercised  by  virtue  of  commissions 
to  be  issued  under  the  great  seal  of  England  or  under  the 
seal  of  the  high  admiral,  or  the  commissioners  for  executing 
the  office  of  high  admiral  of  England.  And  further  our  ex- 
press will  and  pleasure  is,  and  we  do  by  these  presents  for 
us,  our  heirs  and  successors,  ordain  and  appoint  that  these 
our  letters  patent  shall  not  in  any  manner  enure  or  be  taken 
to  abridge,  bar  or  hinder  any  of  our  loving  subjects  what- 
soever to  use  and  exercise  the  trade  of  fishing  upon  the 
coasts  of  New  England,  but  that  they  and  every  of  them 
shall  have  full  and  free  power  and  liberty  to  continue  and 
use  their  said  trade  of  fishing  upon  the  said  coast  in  any  of 


OF  MASSACHUSETTS. 


409 


the  seas  thereunto  adjoining,  or  any  arms  of  the  said  seas 
or  salt  water  rivers  where  they  have  been  wont  to  fish  ;  and 
to  build  and  set  upon  the  lands  within  our  said  province  or 
colony  lying  waste  and  not  then  possessed  by  particular  pro- 
prietors such  wharves,  stages  and  work  houses  as  shall  be 
necessary  for  the  salting,  drying,  keeping  and  packing  of 
their  fish  to  be  taken  or  gotten  upon  that  coast;  and  to  cut 
down  and  take  such  trees  and  other  materials  there  growing 
or  being  upon  any  parts  or  places  lying  waste,  and  not 
then  in  possession  of  particular  proprietors,  as  shall  be 
needful  for  that  purpose  and  for  all  other  necessary  ease- 
ments, helps  and  advantages  concerning  the  trade  of  fishing 
there  in  such  manner  and  form  as  they  have  been  hereto- 
fore at  any  time  accustomed  to  do  without  making  any  wil- 
ful waste  or  spoil ;  anything  in  these  presents  contained  to 
the  contrary  notwithstanding.  And  lastly  for  the  better 
providing  and  furnishing  of  masts  for  our  royal  navy,  we 
do  hereby  reserve  to  us,  our  heirs  and  successors  all  trees 
of  the  diameter  of  twenty-four  inches  and  upwards  of  twelve 
inches  from  the  ground  growing  upon  any  soil  or  tract  of 
land  within  our  said  province  or  territory  not  heretofore 
granted  to  any  private  persons  :  And  we  do  restrain  and 
forbid  all  persons  whatsoever  from  felling,  cutting  or  de- 
stroying any  such  trees  without  the  royal  license  of  us,  our 
heirs  and  successors  first  had  and  obtained,  upon  penalty  of 
forfeiting  one  hundred  pounds  sterling  unto  us,  our  heirs 
and  successors  for  every  such  tree  so  felled,  cut  or  destroyed 
without  such  license  had  or  obtained  in  that  behalf,  any- 
thing in  these  presents  contained  to  the  contrary  in  anywise 
notwithstanding. 

In  witness  whereof  we  have  caused  these  our  letters  to  be 
made  patent.  Witness  ourselves  at  Westminster,  the 
seventh  day  of  October,  in  the  third  year  of  our  reign. 

By  writ  of  privy  seal. 

Pigot. 


410 


JUDICIAL  HISTORY 


APPENDIX 
F. 

EXPLANATORY  CHARTER. 


George  by  the  grace  of  God,  of  Great  Britain,  France 
and  Ireland,  King,  defender  of  the  faith,  &c.  To  all  to 
whom  these  presents  shall  come,  greeting :  Whereas  our  late 
royal  predecessors  William  and  Mary,  King  and  Queen  of 
England,  &c,  did  by  their  letters  patent  under  their  great 
seal  of  England  bearing  date  at  Westminster,  the  seventh  of 
October  in  the  third  year  of  their  reign  for  themselves,  their 
heirs  and  successors  unite,  erect  and  incorporate  the  territo- 
ries and  colonies  commonly  called  or  known  by  the  names  of 
the  colony  of  the  Massachusetts  Bay  and  colony  of  New 
Plymouth,  the  Province  of  Main,  the  territory  called  Accada 
or  Nova  Scotia,  and  all  that  tract  of  land  lying  between  the 
said  territories  of  Nova  Scotia  and  the  said  province  of  Main, 
into  one  real  province  b}7  the  name  of  our  province  of  the 
Massachusetts  Bay  in  New  England.  And  whereas  their 
said  late  majesties  King  William  and  Queen  Mary  did  by 
their  said  recited  letters  patent  (amongst  other  things  therein 
contained)  for  themselves,  their  heirs  and  successors,  ordain 
and  grant  that  there  should  and  might  be  convened,  held  and 
kept  by  the  governor  for  the  time  being  upon  every  last 
Wednesday  in  the  month  of  May  every  year  for  ever,  and  at  all 
such  other  times  as  the  governor  of  their  said  province  should 
think  fit  and  appoint  a  great  and  general  court  or  assembly; 
which  said  great  and  general  court  or  assembly  should  con- 
sist of  the  governor  and  council,  or  assistants  for  the  time 
being  and  of  such  freeholders  of  their  said  province  or  terri- 
tories as  should  be  from  time  to  time  elected  or  deputed  by 
the  major  part  of  the  freeholders  and  other  inhabitants  of 


OF  MASSACHUSETTS. 


411 


the  respective  towns  or  places,  who  should  be  present  at  such 
elections :  each  of  the  said  towns  and  places  being  thereby 
empowered  to  elect  and  depute  two  persons  and  no  more,  to 
serve  for  and  represent  them  respectively  in  the  said  great 
and  general  court  or  assembly,  and  that  the  governor  for  the 
time  being  should  have  full  power  and  authority,  from  time 
to  time  as  he  should  judge  necessary  to  adjourn,  prorogue  and 
dissolve  all  great  and  general  courts  or  assemblies  met  and 
convened  as  aforesaid  :  And  did  thereby  also  for  themselves, 
their  heirs  and  successors  provide,  establish  and  ordain,  that 
in  the  framing  and  passing  of  all  orders,  laws,  statutes  and 
ordinances,  and  in  all  elections  and  acts  of  government  what- 
soever, to  be  passed,  made  or  done  by  the  said  general  court 
or  assembly  or  in  council,  the  governor  of  the  said  province 
or  territory  of  the  Massachusetts  Bay  in  New  England,  for 
the  time  being  should  have  the  negative  voice,  and  that  with- 
out his  consent  or  approbation,  signified  and  declared  in 
writing,  no  such  orders,  laws,  statutes,  ordinances,  elections, 
or  other  acts  of  government  whatsoever  so  to  be  made,  passed 
or  done  by  the  said  general  assembly  or  in  council,  should 
be  of  any  force,  effect  or  validity,  anything  therein  contained 
to  the  contrary  in  any  wise  notwithstanding ;  as  in  and  by 
the  said  letters  patent  (relation  being  thereunto  had)  may 
more  fully  and  at  large  appear. 

And  whereas  no  provision  is  made  by  the  said  recited  let- 
ters patent,  touching  the  nomination  and  election  of  a  speaker 
of  the  representatives  assembled  in  any  great  and  general 
court  of  our  said  province  nor  any  particular  reservation 
made  of  the  right  of  us,  our  heirs  and  successors  to  approve 
or  disapprove  of  such  speaker  by  the  governor  of  the  said 
province  appointed  or  to  be  appointed  by  us  or  them  for  the 
time  being  ;  and  no  power  is  granted  by  the  said  recited  let- 
ters patent  to  the  said  house  of  representatives  to  adjourn 
themselves  for  any  time  whatsoever  ;  by  means  whereof  di- 
vers doubts  and  controversies  have  arisen  within  our  said 
province  to  the  interruption  of  the  public  business  thereof, 
and  the  obstruction  of  our  service  ;  know  ye  therefore  that 


412 


JUDICIAL  HISTORY 


for  removing  the  said  doubts  and  controversies,  and  pre- 
venting the  like  mischiefs  for  the  future  ;  and  also  for  the 
further  explanation  of  the  said  recited  letters  patent,  we  of 
our  especial  grace,  certain  knowledge,  and  mere  motion, 
have  granted,  ordained  and  appointed,  and  by  these  presents 
for  us,  our  heirs  and  successors  do  will,  grant,  ordain  and 
appoint,  that  forever  hereafter,  the  representatives  assem- 
bled in  any  great  or  general  court  of  our  said  province  to  be 
hereafter  summoned,  shall  upon  the  first  day  of  their  assem- 
bling, elect  a  fit  person  out  of  the  said  representatives,  in 
such  general  court ;  and  that  the  person  so  elected  shall  from 
time  to  time  be  presented  to  the  governor  of  our  said  prov- 
ince for  the  time  being,  or  in  his  absence  to  the  lieu- 
tenant governor,  or  commander  in  chief  of  our  said  prov- 
ince for  the  time  being,  for  his  approbation ;  to  which 
governor,  lieutenant  governor  and  commander  respectively 
we  do  hereby  for  us,  our  heirs  and  successors,  give  full 
power  and  authority  to  approve  or  disapprove  of  the  per- 
son so  elected  and  presented,  which  approbation  or  dis- 
approbation shall  be  signified  by  him  by  message  in  writing 
under  his  hand  to  the  said  house -of  representatives  ;  and  in 
case  such  governor,  lieutenant  governor  or  commander  in 
chief  shall  disapprove  of  the  person  so  elected  and  presented, 
or  the  person  so  elected  and  presented  being  approved  as 
aforesaid  shall  happen  to  die,  or  by  sickness  or  otherwise  be 
disabled  from  officiating  as  speaker,  in  every  such  case,  the 
said  representatives  so  assembled  shall  forthwith  elect  another 
person  to  be  speaker  of  the  house  of  representatives  to  be 
presented  and  approved  or  disapproved  in  manner  as  afore- 
said, and  so  from  time  to  time  as  often  as  the  person  so 
elected  and  presented  shall  be  disapproved  of  or  happen  to 
die,  or  become  disabled  as  aforesaid. 

And  our  further  will  and  pleasure  is,  and  we  do  by  these 
presents  of  our  more  abundant  grace  for  us,  our  heirs  and 
successors  grant,  ordain  and  appoint,  that  it  shall  and  may 
be  lawful  to  and  for  the  representatives  assembled  in  any 
great  or  general  court  of  our  said  province  for  the  time  being, 


OF  MASSACHUSETTS. 


413 


for  ever  hereafter  to  adjourn  themselves  from  clay  to  clay 
(and  if  occasion  shall  require)  for  the  space  of  two  days  ; 
but  not  for  any  longer  time,  than  for  the  space  of  two  days 
without  leave  from  the  governor,  or  in  his  absence  from  the 
lieutenant  governor,  or  commander  in  chief  of  our  said  prov- 
ince for  the  time  being  first  had  and  obtained  in  that  behalf, 
anything  in  the  said  recited  letters  patent  contained  to  the 
contrary  thereof  in  anywise  notwithstanding. 

Provided  always,  that  nothing  in  these  presents  contained 
shall  extend,  or  be  construed  to  extend,  to  revoke,  alter  or 
prejudice  the  power  and  authority  by  the  said  recited  letters 
patent  granted  to  the  governor  of  the  said  province  for  the 
time  being  to  adjourn,  prorogue  and  dissolve  all  great  and 
general  courts  or  assemblies  of  said  province. 

And  lastly,  we  do  by  these  presents,  for  us,  our  heirs  and 
successors,  grant  that  these  our  letters  patent,  or  the  enrol- 
ment, or  exemplification  thereof,  shall  be  in  and  by  all  things 
good,  firm,  valid  and  effectual  in  the  law  according  to  the 
true  intent  and  meaning  thereof  notwithstanding  the  not 
rightly,  or  fully  reciting,  mentioning  or  describing  the  said 
recited  letters  patent,  or  the  date  thereof  or  any  other  omis- 
sion, imperfection,  defect,  matter,  cause  or  thing  whatsoever 
to  the  contrary  thereof  in  anywise  notwithstanding. 

In  witness  whereof,  we  have  caused  these  our  letters  to 
be  made  patent,  witness,  William  Archbishop  of  Canterbury, 
and  the  rest  of  the  guardians  and  justices  of  the  Kingdom 
at  Westminster,  the  six  and  twentieth  day  of  August,  in 
the  twelfth  year  of  our  reign. 

By  writ  of  privy  seal. 

Cocks. 


INDEX 

TO  THE 

JUDICIAL  HISTORY. 


Abbott,  Caleb.  226. 

Hubbard  M.  273. 

Josephine  L.  266. 

Josiab  G.   207,  226,  265,  266. 

Mercy.  226. 

Phoebe.  266. 
Abigail  Ship.  22. 
Academy  of  Arts  and  Sciences. 

129,  130. 
Adams,  Charles.  231. 

George  Z.    210,  231. 

John.    78,  87,  98,  102,  221, 
308,  309,  319,  320. 

John  S.  252. 

Jonathan.  299. 

Joseph.  241. 

Mary.  231. 

Mary  Eliz.  252. 

Susanna.  102. 

Thomas.  25. 

Thomas  B.    202,  204,  218, 
221. 

Addington,  Isaac.   43,  86,  91, 

150,  152,  167. 
Admiralty,  Districts.  75. 

Judges.  76. 

Judiciary.  76. 

Jurisdiction.    75,  76. 

Marshal.  75. 

Register.  75. 
Advocates,  General.  78. 


Aiken,  David.    244,  251. 

Elizabeth.  251. 

John  Adams.    255,  262. 

Phinehas.  251. 
Albro,  John.  55. 
Alcot,  Job.  60. 
Alden,  John.    6,  13. 
Aldersey,  Mr.  25. 
Aldrich,  Peleg  E.    255,  260. 
Alexander,  Medad.    238,  239. 
Alger,  Arthur  M.  270. 
Allen,  Charles.    180,  197,  207, 
227,  244,  247,  252,  254,  256, 
286,  289. 

Daniel.  53. 

Ebenezer.    121,  122. 

James.  122. 

James  G.  199. 

John.    121,  122,  201. 

Thomas.  237. 

William.    180,  197,  255,  259. 

William  H.  288. 
Allen's  Reports.  198. 
Allerton,  Isaac.  13. 
Allyn,  Elizabeth.  258. 

James.  121. 

John.    55,  122. 

Joseph.  111. 
Almy,  Job.    88,  115,  116,  118. 
Ames,   Fisher.     194,  320,  321, 
323,  324. 

(415) 


416  INDEX  TO  THE  JUDICIAL  HISTORY. 


Ames,  Isaac.  275. 

Nathaniel.  202. 

Seth.    180,  194,  254,  256. 
Amoky,  Rufus.  323. 
Andrews,  Abigail.  146. 

Asa.  213. 

Robert.  213. 

Samuel.    321,  323. 
Andros.  162. 

Edmund.    15,  16,  42. 

Sir  Edmund.    51,  53,  54. 

Administration.  75. 
Angier,  Rev.  John.  306. 

Oakes.    298,  306. 

Rev.  Samuel.  300. 

Sybil.  300. 
Annable,  Anthony.  6. 
Appleton,  Daniel.  164. 

David.  125. 

John.    122,  126,  147,  164. 
Mary.  147. 

Samuel.     43,  60,  122,  124, 
125,  126. 
Arbella,  Ship.  29. 
Arms,  Ebenezer.  238. 
Arnold,  Richard.  55. 

Rev.  Samuel.  147. 

Seth.    145,  147. 
Ashley,  John.    112,  113,  114, 

131,  134,  304. 
Ashmun,  George.  183. 
Aspinwall,  William.  240. 
Assistants.    7,  13,  42. 
Associate  Justices.    (50,  87. 
Athearne.  George.  270. 

James.    121,  164,  270. 
Atherton,  Humphrey.  42. 
Atkins,  Henry.  238. 
Attorney  General.    16,  53,  55, 

57,  79,  81,  82,  284,  286. 
Attorneys.    54,  56,  294,  297, 

314,  317,  318,  323. 
Atwood,  John.    13,  146,  302. 


Atwood,  Lydia.  302. 

Mary.  146. 

William.  76. 
Auchmuty,  Judge.  78. 

Robert.    77,  79,  297,  299. 
Austin,  Hannah.  287. 

James  T.    286,  287,  308,  322. 

Jonathan  L.  287. 

Jonathan  W.  323. 
Bacon,  and  Aldrich.  261. 

Ebenezer.    201,  269. 

Edward.    107,  112. 

Ezekiel.    204,  222,  323. 

John.    113,  114,  201,  211. 

John  W.    209,  229,  255,  259. 

Rev.  John.  222. 

Mary.  112. 

Nathaniel.  14. 

Samuel.  112. 
Baker,  Alpheus.  322. 

Col.  196. 

Samuel.    158,  162,  202. 
Baldwin,  Loam  mi.  240. 
Balsh,  John.  31. 
Balston,  William.  31. 
Bane,  Lewis.  90. 
Bangs,  Edward.    204,  222. 
Bar,  Admission  to.    309,  310. 

Association.  318. 

Examination.  318. 

Examiners.  312. 

of  Mass.  292. 
Barker,  Isaac  B.  272. 

James.  113. 

James  M.    ISO,  200,  255,  261. 

John  V.  200. 

Josiah.  240. 

Josiah,  Jr.  274. 

Sarah.  200. 

William.  274. 
Barnard,  Thomas.  142. 
Barnes,  David  L.    321 , 323,  324. 

Elizabeth.    110,  148. 


INDEX  TO  THE  JUDICIAL  HISTORY.  417 


Barnes,  Jonathan.    110,  148. 
Barney,  Edward  L.  291. 

Jonathan  T.  274. 
Barristers.    295,  296,  297,  316, 

318,  320.  ' 
Bartlett,  Abigail.  149. 

Benjamin.  149. 

Joseph.    20,  323,  324. 
Barton,  Ira  M.  275. 
Bass,  Samuel.    204,  221. 
Bassett,  Anselm.    258,  270. 

Benjamin.    201,  238. 

Samuel.    169,  202. 

William.    106,    109,  163, 
166,  273. 
Batchelder,  Josiah.  241. 
Bates,  Elijah.  239. 

Isaac  C.  273. 
Baxter,  Jarvis.  55. 

Richard.    107,  112. 

Shubael,  107,  110,  143. 
Bayard,  Nicholas.  55. 
Baylies,  Francis.    120,  270. 

Hodijah.  270. 

William.    116,  119,  270,  276. 
Beadle.  49. 
Beaver  Hats.  142. 
Beecher,  Mr.  37. 
Belcher,  Andrew.    85,  167. 

Governor.  153. 

Jonathan.  85. 
Bell,  Charles  H.  267. 

Charles  U.    255,  262,  267. 

James.  267. 

Judith  A.  267. 
Bellingham,  Richard.    36,  37, 

42,  292. 
Bellomont,  Earl  of.  83. 

Governor.  72. 
Bemis,  Joseph.  240. 
Bender,  Jotham.  323. 
Bennett  &  Aiken.  251. 

Alvin  W.  233. 

27 


Bennett,  Edmund  H.  270. 

John  A.    210,  233. 

Mary  H.  233. 
Berry,  Thomas.    88,  89,  124, 
164. 

Bid  well,  Adonijah.  237. 

Barnabas.  286. 
Bigelow,  Col.  Timothy.  182. 

George  T.     178,  179,  182, 
244,  249,  258. 
Billings,  Israel.  239. 
Bishop,  Eliza  H.  263. 

Henry  W.    244,  250,  270. 

Jonathan  P.  263. 

Nathaniel.     201,  211,  237, 
269. 

Robert  R.    255,  263. 

Townsend.  37. 
Blacke,  John.  20. 
Blackmer,  Wilmon  W.  265, 
266. 

Blagrove,  Nathaniel.  115, 163. 
Blair,  William.  272. 
Blake,  Francis.  323. 

George.    277,  322,  323. 

Joseph.  323. 
Bliss,  Abel,  Jr.  239. 

Daniel.    298,  305. 

George.  194. 

John.    132,  136. 

Jonathan.    298,  308. 

Moses.    202,  215,  298,  303. 

Rev.  Daniel.  305. 
Blodgett,  Caleb.    255,  260. 

Charlotte.  260. 
Blowers,  Sampson  S.    298, 305, 

319,  320. 
Board  of  War.  141. 
Boardman,  Andrew.    137,  140, 
166. 

Andrew,  Jr.  166. 
Halsey  J.  261. 
Bollan,  William.  78. 


418  INDEX  TO  THE  JUDICIAL  HISTORY. 


Bond,  Amos.  239. 

Daniel  W.    255,  263. 

Daniel  H.  263. 

Deborah.  263. 

Jonas.  137. 
Bonney,  Arthur  P.  265. 

Clara.  265. 

Emma.  265. 
Borden,  Alanson.  259. 
Boston,  Act  of  Incorp.  181. 

Court.  46. 
Bourne,  Ezra.    107,  110,  143. 

Meletiah.   107,  111,  163, 237. 

Mercy.  129. 

Shearjashub.    110,  202,  211, 

284,  298,  306. 
Sylvanus.    89,  91,  111,  129, 

143,  163. 
William.    124,  129,  241. 
Boutelle,  Timothy.  322. 
Bowdoin,  James.  169. 
Bowen,  Thomas.  116. 
Boydell,  John.  167. 
Bradbury,   Theophilus.  179, 

187,  276,  298,  303. 
Bradford,  Gamaliel.   145,  149, 
195. 

Hannah.  149. 
Margaret.  195. 
Perez.  116. 
Samuel.  149. 
Sarah.    150.  /- 
William.   6,  13,  54,(l45,  146, 

William,  2d.    13,  15,  60^/^ 
Bradley,  David.  322. 
Bradstkeet,  Dudley.  51. 

Mr.  Dudley.  31. 

Simon.    36,  37,  42,  51,  57, 
60,  292. 
Braintree.  168. 
Braley,  Henry  K.    255,  264. 

Mary  A.  264. 


Braley,  Samuel  T.  264. 
Branning,  John.  270. 
Brattle,  Nathaniel.  320. 

Square  Church.  169. 

William.    81,  89. 
Breck,  John.  239. 
Brenton,  Ebenezer.    115,  117, 
164. 

Brewster,  Jonathan.  6. 

William.  6. 
Bridges,  Robert.  42. 
Bridgman,  Joseph.  239. 
Briggs,  Allen.  250. 

George  N.    244,  250. 

Henry  S.  269. 

Mary.  250. 
Brigham,    Elijah,    202,  215. 

Lincoln.    254,  258. 

Lincoln  F.  258. 

Lucy.  258. 
Bristol.  5. 

Brock,  Thomas.    143,  144. 
Brockholst,  Anthony.  55. 
Brooks  &  Ball.  263. 

B.  F.  229. 

Caroline  D.  193. 

George  M.  273. 

Nathan.  193. 

Peter  C.  276. 
Brown,  Abner.    204,  239. 

Benjamin.  90. 

Benjamin  F.  274. 

John.    13,  113. 

John  F.    210,  233. 

Samuel  A.  226. 

William.  87. 
Browne,  James.  14. 

John.    115,  117. 

Samuel.    122,  126. 

William.  22,  24,  43,  55,  89, 
90,  98,  122,  124,  125,  126, 
129. 

William  C.  275. 


INDEX  TO  THE  JUDICIAL  HISTORY. 


419 


Bruce,  Phineas.  321,  323. 
Buildings.  178. 
Bulkley,  John.  323. 

Peter.    16,  17,  43,  51,  52,  55. 

Rev.  Peter.  52. 
Bullard,  Dr.  Asa.  181. 

Mary  EL  263. 
Bullivant,  Benjamin.    53,  79. 
293. 

Bullock,  Alexander  H.  275. 
Bunch  of  Grapes.  318. 
Bunker,  Caleb.    143,  144. 

George.    142,  144,  166. 

James  M.  274. 
Bukbank,  Stephen.  201. 
Burke  &  Wait.  231. 

John.  233. 

John  H.    210,  233. 

Mary.  233. 
Burnet,  Bishop.  84. 

Governor.  84. 

William.  84. 
Buhnside,  Samuel  M.  247. 
Burrill,  Ebenezer.  88. 

James.  60. 

John.    88,  124,  126. 

Theophilius.    88,  124,  127. 
Burt,  Gideon.  239. 
Butler,  Benjamin  F.  252. 
Byfield,   Nathaniel.    76,  77, 
88,  115,  117;  118,  150,  153, 
163. 

Richard.  77. 
Byington,  Horatio.    244,  249. 

Isaiah.    249.  , 
Cabot,  George.  212. 

Henry.  322. 
Calef,  Ebenezer.    143,  144. 
Callendeh,  John.  323. 
Capawack.  68. 
Capital,  Crimes.    32,  33. 

Trials.  178. 
Captives.  134. 


Carey,  John.  164. 

Howard.  241. 

Nathaniel.  137. 
Carr,  Sir  Robert.    48,  49. 
Caktwright,  George.    48,  49. 
Carver,  John.  13. 
Cazneau,  Andrew.    297,  249, 
319. 

Chamberlain,  Mellen.  208,  230. 

Mary.  230. 

Moses.  230. 
Chambers,  Charles.    137,  139. 
Champenon,  Francis.  51. 
Chandler,  Clarke.  167. 

Joel.  167. 

John.     89,   157,  158,  159, 
167. 

Peleg  W.  263. 
Chapin,  Henry.  275. 
Chapman,  Henry.  252. 

Reuben  A.    178,  179,  183. 

&  Ashmun.  257. 

Ashmun  &  Morton.  260. 
Charles,  the  Second.  50. 
Charter,  Construction  of.  26. 

Explanatory.    63,  410. 

Mass.  Colony.    21,  22,  50, 
363. 

Mass.  Province.    57,  384. 
New  England.  327. 
Checkley,  Anthony.  53, 57,  60, 

80. 

Samuel.  151. 
Cheesbokough,  William.  31. 
Cheever,  Ezekiel.  89. 
Chief  Justice,  Sup.  Jud.  Ct. 
178. 

Justices',  Sup.  Jud.  Ct.  86. 
Chilton,  Mary.  154. 
Chipman,  John.    121,  122,  297, 
300. 

Rev.  John.  300. 
Choat,  John.    124,  125,  128. 


420  INDEX  TO  THE  JUDICIAL  HISTORY. 


Ciioate,  David.  288. 

George  F.  271. 

John.  164. 

Mirriam.  288. 

Ruius.  286,  288. 
Church,  Alice.  118. 

Benjamin.    115,  117,  118. 

Elizabeth.  117. 

Richard.    117,  133. 

Thomas.    115,  118. 
Churchill,  Asaph.  230. 

Joseph  M.    209,  230. 

Mary.  230. 
Circuit,  Middle.  204. 

Southern.  204. 

Western.  204. 
Clap,  Samuel.  241. 

Thomas.    145,  148. 
Clapp,  Thaddeus.  239. 

Thomas.  146. 
Clark,  Hobart.  238. 

John.  88. 

Nathaniel.    15,  54,  57. 

Thomas.  57. 

Walter.  54. 
Clarke,  Edward.  321. 

Manlius  S.  182. 

Peter.  320. 

Thomas.  43. 
Cleaveland,  Nehemiah.  238. 

William.  238. 
Clerks  of  Town.  106. 
Clifford,  John  H.    251,  258, 

286,  287. 
Cobb,  David.    116,  120,  188. 

David,  G.  W.  270. 

Elijah.  237. 

Eunice.  188. 

George.  274. 

Jonathan.  274. 

Jonathan  H.  274. 

Sally.  186. 

Thomas.  186. 


CODDINGTON,  Mr.  31. 

William.    36,  37,  42. 
Codman,  John.  322. 
Coffin,  Abner.  274. 

Benjamin.  240. 

Daniel.  240. 

Ebenezer.  143. 

Enoch.    91,  121,  122,  143. 

Isaac.  274. 

James.    90,   142,  143,  166, 
202. 

John.    121,  122,  143,  144. 

Jonathan.    143,  144. 

Joseph.    143,  144. 

Josiah.    143,  144. 

Nathaniel.    124,  323. 

Peter.  142. 

Thaddeus.  240. 

Tristram.  142. 

William.  240. 
Coggan,  John.    54,  293. 
Coggshall,  John.  54. 

COHASSET.  41. 

Coit,  Isaac.  239. 
Colbron,  William.    22,  24. 
Colburn,  Hattie.  198. 

Ira.  198. 

Thatcher.  198. 

Waldo.    180,  198,  232,  255, 
260. 

Colby,  Harrison  G.  O.  244,  248, 
258. 

Collier,  William.    6,  13. 
Collins,  P.  A.  233. 
Colonial  Laws.  5. 
Colony,  Mass.    7,  21,  50,  58. 

Plymouth.    1,  54. 
Colt,  James  D.     179,  193,  256. 
Commissioners,  Highways.  236. 

Oyer  &  Terminer.    48,  89. 
Common  Law.  54. 
Commonwealth.    168,  243. 
Compact.  3. 


INDEX  TO  THE  JUDICIAL  HISTORY.  421 


Conant,  A  una.  232. 

Anna  J.  232. 

Chester  C.    252,  272. 

Christopher.  31. 

Levi.  232. 
Conkey,  Ithamar.  273. 
Connell,  Margarett.  302. 
Constable.  65. 
Constitution.     169,  170,  171, 
172. 

Cook,  Nancy.  290. 

Thomas.  164. 
Cooke,  Ellen  D.  290. 

Elisha.    43, 69,  87, 88,  90,  93, 
150,  153,  167. 

Henry  H.  290. 

John.  212. 

Sarah.  212. 

Thomas.  271. 
Cooper,  William.    167,  275. 
Coote,  Richard.    72,  83. 
Corcoran,  Catharine.  264. 

James.  264. 

John  W.    255,  264. 
Cordis,  Joseph.  240. 
Corwin,  George.  60. 

Jonathan.   60,  62,  87,  90,  94, 
122,  125,  164. 
Cotting,  John  B.  321. 
Cottle,  Shubael.  121. 
Cotton,  Joanna.  148. 

John.    146,  167. 

Josiah.    145,  148,  166. 

Rev.  John.  148. 

Roland.  108. 
Council.    51,  169. 
Councillors.    51,  53,  60. 

of  Andros.  15. 
Counsellors.    297,  310. 
Counties.    5,  6,  106. 
County  Affairs.  235. 

Barnstable.     106,  163,  201, 
237,  269. 


County,  Berkshire.    112,  114, 
163,  201,  237,  269. 
Bristol.    115,  163,  201,  237, 

270. 
Clerk.  39. 

Dukes.  120, 164, 201, 238, 270. 
Essex.  40,  164, 201, 238,  271. 
Franklin.    238,  271. 
Hampden.    239,  272. 
Hampshire.  53,  67, 130, 165, 

202,  239,  272. 
Middlesex.     40,   136,  165, 

202,  239,  273. 
Nantucket.     141,  166,  202, 

240,  274. 
Norfolk.    40,   41,   53,  202, 

240,  274. 

Plymouth.     145,  166,  202, 

241,  274. 

Suffolk.    40,  166,  202,  241, 
275. 

Treasurer.  12. 
Worcester.     156,  167,  202, 

241,  275. 
York.  69. 
Court,  Admiralty.   6, 11,  71,  78. 
Appeal.  33. 

Assistants.    6,  10,  31,  33,  36, 
57. 

Assize.    69,  73. 
Boston  Common  Pleas.  204, 
223,  243. 
Justices.  227. 
Police.  227. 
Chancery.    16,  47,  55,  68,  69, 
71. 

Circuit  Com.  Pleas.  202, 

219,  235,  243. 
Clerks.    39,  44,  53,  106,  177, 

203,  206,  243,  252. 
Common  Pleas.    64,  201. 
County.    12,  38,  44,  53,  57, 

64,  201. 


422  INDEX  TO  THE  JUDICIAL  HISTORY. 


Coukt,  County  Coramonn  Pleas. 
210,  234. 
District.    210,  292. 
Fees.  294. 

General.    6,  7,  9,  29,  30,  31, 

33,  35,  36,  60. 
Great  General  Sessions  of 

Peace.  64. 
Great  Quarter.  36. 
House.    156,  157. 
House,  Berkshire.  113. 
Indian.  11. 

Inferior.  16,  33,  36,  55,  67, 
69,  73,  103,  106,  112,  120, 
156. 

Judicature.    16,  55,  67,  69, 

91,  178. 
Justices.    207,  208. 
Laws.    6,  103,  105. 
Magistrates.  44. 
Military.  36. 

Muu.  City  Boston.  208, 253. 
Mun.  Town  Boston.  187, 

205,  224. 
Oyer  &  Terminer.  16. 
Pleas.  53. 

Police.    207,  208,  210,  292. 
Probate.    53,  267,  268. 
Proceedings.  293. 
Quarter   Sessions.    16,  55, 

66,  69,  71. 
Kegula  Generalis.  310. 
Regulse  Genernles.  310. 
Selectmen.    6,  10,  46. 
Sessions.    235,  236,  237,  242. 
Sessions  of  Peace.  53. 
Strangers.    38,  39,, 
Suffolk.    150,  168. 
Superior.    53,  54,  244,  252, 

253,  254. 
Supreme  Judicial.    69,  73, 

103,  156,  168, 173,  174,  175, 

176,  177,  201,  234. 


Courts.    63,  112. 

United  States.  291. 
Cradock,  George.  78. 

Mathew.    22,  25,  27. 
Crafts,  Thomas.    202, 219,  323. 
Cranch,  Richard.    151,  202,  216. 

William.    321,  323,  324. 
Croade,  John.  164. 

Thomas.    145,  146. 
Crocker,  David.    107,  110. 

Hannah.  111. 

Job.  111. 

N.  237. 

Samuel  M.  322. 
Crosby,  Oliver.  241. 
Crowell,  Samuel  P.  237. 
Cuba.  149. 

Cudworth,  James.    6,  13. 
Cummins,  David.    244,  245. 

Mehitabel.  246. 
Curtis,  Benjamin  R.  232. 

Benjamin,  Jr.    210,  232. 

Ephraim.  138. 

Helen  M.  229. 

Paul.  229. 
Curwin,  Jonathan.  90. 
Cushing,  Abel.    208,  228. 

Caleb.  124,128,179,191. 

Charles.  323. 

Edmund.  241. 

Elijah.    145,  148. 

John.  87,  88,  89,  91,  95,  97, 
98,  107,  143,  145,  146,  148, 
166. 

John,  Jr.    145,  147. 
John  N.  191. 
Joseph.  166. 
Luther  S.    244,  248. 
Lydia.  191. 
Nathan.    179,  186. 
Roland.  285. 
Thomas.    88,  151,  167. 
William.    87,  98. 


INDEX  TO  THE  JUDICIAL  HISTORY. 


423 


Daggett,  John.  276. 

Samuel.  323. 
Dana,  Francis.    178,  179,  180, 
298,  304,  319. 

Richard.    297,  298. 

Samuel.    204,  219. 
Dane,  Nathan.    201,  224,  238. 
Danfortii,  Rev.  John.  140. 

Joshua.  237. 

Keyes.  290. 

Nicholas.  69. 

Samuel.    89,  137,  140,  151, 
165. 

Thomas.  42,  69,  87,  90,  92. 
Danielson,  Timothy.  132, 133. 
Davenport,  Addington.  87,  88. 

95. 

Charles.  231. 

Joan.  231. 

Joanna  F.  231. 
Davey,  Humphrey.  43. 
Davis,  Ahner.  269. 

Charles.  323. 

Charles  G.  251. 

Daniel.    60,  107,  112,  163, 
224,  269,  2S4. 

George  T.  195, 197, 252, 257. 

Job  C.  269. 

John.    107,  237,  238,  247, 

248,  269,  313,  322. 
Joseph.  112. 
Louisa.  224. 
Nathaniel  M.  241. 
Samuel.  60. 
Simon.    115,  118. 
Sylvester.  60. 
Thomas.  275. 
Wendell  T.  272. 
William.  238. 
William  T.  261. 
Dawes,  Thomas.    161,  179, 186, 

224,  321,  323. 
Thomas  Jr.    205,  275. 


Day,  Heman.  239. 

Joseph  M.  269. 

Samuel.  240. 

Thomas.  239. 
Dean,  Josiah.  237. 
Defriez,  Thaddeus  C.  274. 
Denison,  Daniel.  42. 

John.  127. 

William.    202,  241. 
Deputy  President.  51. 
Devens,  Charles.    180, 195,  255, 
258. 

Mary  L.  195. 
Devereux,    Humphrey.  322, 
323. 

Dewey,  Charles  A.     179,  189, 
260. 

Daniel.    179,  188,  189. 

Daniel  N.    269,  290. 

Francis  H.    255,  259. 

Henry  S.    210,  233. 

Israel  O.  233. 

Justin.    255,  262. 

Mary  C.  260. 

Melinda.  262. 

Susan  A.  233. 
Dexter,  George.  309. 

Samuel.    151,  155,  313. 

Rev.  Samuel.  155. 
Dimmock,  Joseph.  237. 
Divorce.  178. 
Dixwell,  Epes  S.  185. 

Fanny.  185. 
Doane,  Elisha.  237. 

John.  107. 

Joseph.  107. 
Domesday  Book.  44. 
Done,  John.  6. 
Doric  Hall.  217. 
Dorr,   Joseph.    158,  162,  202, 
214,  275. 

Rev.  Joseph.  162. 

Samuel  A.    322,  323,  324. 


424  INDEX  TO  THE  JUDICIAL  HISTORY. 


Doty,  Calvin.  264. 

Kate  C.  264. 

Sarah.  264. 
Dowse,  Jonathan.    137,  139. 
Dudleian,  Lectures.  80. 
Dudley,  Joseph.   16,  17,  42,  43, 
50,  55.  84,  152. 

Paul.    80,  87,  91,  156,  167- 

President.    79,  162. 

Thomas.    22,  24,  25,  36,  37, 
42,  53. 

William.    150,  152,  153. 
Dukes,  County.    58,  106. 
Duke  of  York.  54. 
Dummeu,  Governor.  84. 

Jeremiah.    150,  152. 

Richard.  37,  42,  152. 
Dunbar,  Elizabeth.  263. 

Henry  W.  263. 

James  R.    255,  263. 
Duncan,  James  H.  289. 

Margaret.  289. 

Mary.  289. 
Dunham,  Charles  G.  M.  271. 

Thomas.  238. 
Durfee,  Thomas.    116,  169. 
Dutton,  Warren.   276,  322,  323. 

DUXBURY.  7. 

Dwight,  Elijah.    113,  163,  201, 
211. 

Henry.    131,  134,  135,  239. 
Jonathan.    239,  276. 
Joseph.    112,  131,  135,  157, 

158,  159,  163. 
Josiah.    131,  132,  135. 
Sophia.  194. 

Timothy.    131,  134;  135, 165. 

Timothy,  Jr.    132,  136. 
Eaton,  Theophilus.  25. 
Edson,  Josiah.    107,  145,  146, 
149. 

Edwards,  Edward.  269. 
Thomas.    313,  320,  323. 


Edwards,  Timothy.    163,  269. 
Egleston,  Azariah.  237. 
Elder,  Samuel  J.  232. 
Election.  29. 
Eliot,  James.  322. 

Thomas  D.    246,  259. 
Ellis,  John.  240. 

John,  Jr.  240. 

William.  241. 
Ely,  Amelia  M.  232. 

Ethan.  239. 

Frederick  D.    210,  232. 

Nathan.  232. 

William.  239. 
Emerson,  Anna.  232. 

Charles  N.  200. 

Lyman.  232. 

Olive.  232. 
Emmes,  Aaron.  322. 
Emmons,  Sylvester.  239. 
Emory,  Nicholas.  322. 

Rufus.  320. 
Endicott,  Capt.  31. 

John.    22,  25,  36,  37,  42, 
241. 

Mary.  195. 

William  C.    180,  195. 

William  P.  195. 
Everett,  Alexander  H.  217. 

David.    181,  275. 

Edward.    217,  256. 

Moses.    202,  218. 

Oliver.    202,  217. 
Fales,  Nathaniel.  212. 

Samuel.    201,  212. 

Sarah.  212. 

Timothy.    115,  119. 
Fallon,  Joseph.  238. 
Farley,  Frances  D.  270. 
Farnham.    297,  299,  306. 
Farwell,  Frances  E.  184. 

George.    16,  18,  55,  79, 
293. 


INDEX  TO  THE  JUDICIAL  HISTORY. 


425 


Farwell,  Nathan  A.  184. 
Fay,  Jonathan.  323. 

Samuel  P.  P.    240,  273,  276. 
Federal  Street.  101. 
Fessenden,  Franklin  G.  255, 
204. 

Nicholas.  185. 
Field,  Abner.  184. 

W.  Abner.    179,  180,  184. 

Louisa  G.  184. 
Fisher,  Daniel.  43. 

Lewis.  241. 

Nathaniel.  321. 
Fiske,  Augustus  H.  246. 

Isaac.    240,  273. 

Josiah  J.  256. 
Fitch,  Samuel.     79,  297,  299, 
319. 

Sarah  O.  266. 
Thomas.  88. 

FlTCHBURG.  157. 

Fletcher,  Luther  J.  273. 

Oliver.  138. 

Richard.  179,  191. 
Flint,  James  H.  274. 

Thomas.  42. 
Fluellen.  183. 
Folger,  Eleazer.  166. 

Frederick.  166. 

Walter.  219. 

Walter,  Jr.    202,  240. 
Folsom,  Samuel  H.  273. 
Forbes,  Charles  E.    179,  190, 
244,  249,  252. 

William  T.  276. 
Ford,  Mary  E.  230. 
Forrett,  James.  142. 
Forsaith,  Josiah.  231. 

Maria.  231. 

William  J.    210,  231. 
Fortune,  Ship.  154. 
Forward,  Joseph.  239. 
Foster,  Bessinger.  321. 


Foster,  Chillingworth.  108. 
Dwight.    179,  194,  202,  214, 

275,  289. 
Grace.  223. 
Hannah.  148. 
James.  273. 

Jedediah.    87,  89,  101,  158, 

161,  167,  214. 
John.    20,  60,  137,  148,  150, 

151. 

Richard.    137,  140. 
Sally.  223. 

Thomas.    145,  146,  148. 

William.  223. 
Fowler,  Jacob.  125. 

James.  239. 

Samuel.    239,  272. 
Foxcroft,  Daniel.  165. 

Francis.    137,  138,  139,  151, 
165. 

Francis,  Jr.  140. 

Thomas.  165. 
Freeman,  Edmund.    13,  108. 

James.  237. 

John.    14,  106,  108,  237. 

Nathaniel.     107,  110,  112, 
163,  201,  210,  237,  269. 

Samuel.  237. 

Solomon.  237. 
Freemen.    8,  31. 
French  Wars.  134. 
Frost,  Charles.  90. 

Joshua.  239. 

Simon.  89. 
Frye,  Peter.    124,  129,  164. 
Fulham,  Francis.    137, 139, 151. 
Fuller,  Jabez.  148. 

Lois.  148. 

Samuel.  13. 

Timothy.  322. 

William  E.  270. 
Gage,  Desire.  211. 

Thomas.  86. 


426  INDEX  TO  THE  JUDICIAL  HISTORY. 


Gage,  Viscount.  86. 
Gaines,  General.  193. 
Gallard,  William.  31. 
Galligan,  John  H.  270. 
Gardiner,  Sylvester.  302. 
Gardner,  Augusta  P.  230. 

Edward  M.  274. 

George.    142,  144,  166,  202. 

Grafton.    143,  144,  166. 

Henry.    137,  141,  202,  213. 

Jeremiah.  166. 

John.   90,  142,  143,  144,  166, 
298,  302. 

Joseph.    143,  144,  151. 

Richard.    142,  144. 

William  S.    180,  198,  255, 
260. 

Gaskill,  Francis  A.    255,  266. 
Gaston,  William.  184. 
Gay,  Bunker.  198. 

Ebenezer.    228,  321,  322. 

Mary  E.  198. 
Gayer,  William.  90. 
Geare,  William.    142,  143,  144. 
Gedney,  Bartholomew.    43,  51, 
60,  61,  90,  122,  125,  164. 

William.  124. 
Geokge,  Elijah.  275. 
Gerry,  Catharine.  287. 

Elbridge.  287. 
Ghent,  Treaty  of.  287. 
Gibbons,  Edward.  42. 
Gibbs,  Henry.    124,  128. 
Gilbert,  Thomas.  116. 
Gill,  Michael.    202,  215. 

Moses.    158,  168,  202,  214. 

Thomas.    275.  „ 
Glover,  John.  42. 
Godfrey,  Elizabeth  A.  260. 

George.  116. 

John.  116. 

Jones.  237. 
Goffe,  Thomas.  24. 


Goodale,  Job.  238. 
Goodell,  Abner  0.  271. 
Goodrich,  Charles.    201,  211. 
Goodwin,  Henry.  320. 
Gookin,  Daniel.  42. 

Samuel.  49. 
Gobe,  Christopher.    313,  321, 
323. 

Gorges,  Robert.  21. 
Gorham,  David.  163. 

John.    91,  106,  108,  109. 

Nathaniel.    202,  213. 
Gould,  Dr.  A.  A.  265. 

Lucy  C.  265. 
Goulding,  Francis  P.  260. 
Governor,  Deputy.    12,  13,  42. 

General.  53. 
Governors,  Mass.  41. 

Old  Colony.    7,  13. 
Graham,  James.  80. 
Grand  Jury.  6. 
Grant,  Robert.  275. 
Graves,  Thomas.  87. 
Gray,  Edward.    321,  323. 

Horace.    178,  179,  183,  313. 

Lucia.  222. 

William.    183,  222,  276. 
Gray's  Reports.  183. 
Great  Barrington.  112. 
Greaves,  Thomas.    88,  96, 137, 

138,  139,  151. 
Green,  Isaiah  L.  237. 

Joseph.    151,  154. 

Joshua.  238. 

Mary  W.  267. 

Stephen.  142. 

William  E.  223. 
Greene,  David  I.  322. 

John.    49,  54,  57. 
Greenleaf,    Benjamin.  124, 
130,  164,  201,  271. 

John.    89,  125. 
Greenough,  David.  227. 


INDEX  TO  THE  JUDICIAL  HISTORY.  427 


Greenough,  Ellen.  227. 
Gridley,  Benjamin.    151,  155, 
297,  299. 

Jeremiah.    78,  81. 
Grinnell,  George.    252,  271. 

George,  Jr.  272. 
Guild,  Samuel.  237. 
Gutney,  Patrick  R.  275. 
Gunnison,  Joseph.  90. 
Gurley,  John  W.    321,  323. 
Hall,  Hugh.  151. 

John.  43. 

Joseph.    223,  275,  321,  322, 
323. 

Hallett,  Benjamin  F.  231, 261. 
Hamilton,  Amos.  204. 
Hammatt,  Abraham.    218,  228. 

Lucia.  228. 

Lucy.  218. 

William.  202,  218. 
Hammond,  John.  200. 

John  W.    180,  200,  255,  262. 

Joseph.  90. 

Maria  L.  200. 
Hardy,  Hannah.  232. 

John.  232. 

John  H.  210,  232,  255,  266. 
Harlakenden,  Roger.  37,  42. 
Harloav,  George  H.  276. 

Mary.  302. 
Harkiman,  Hiram  P.  269. 
Harris,  Margaret.  303. 
Hart,  John.  240. 
Hahtford  Convention.  223. 
Hartwell,  Edward.    157,  158, 
159. 

Hastings,  Seth.    190,  241. 

Thomas.  132. 
Hatch,  Nathaniel.    151,  154. 
Hatheuly,  Timothy.    6,  13. 
Hathorne,  John.    60,  87,  90, 
122,  125. 

William.  125. 


Haven,  Samuel.    202,  217,  274, 
321. 

Hawley,  Joseph.   131, 133,  298, 

303,  308. 
Hawthorne,  John.    43,  93. 

William.  42. 
Hayman,  King.  56. 

Samuel.    136,  138. 
Haynes,  John.    36,  37,  42. 
Hayward,  Elijah.  220. 
Hazard,  Governor.  129. 
Heald,  Joseph.  240. 
Heard,  John.  238,  275,  322, 323. 
Heath,  Joseph.    204,  222. 

William.    37,  202,  274. 

Gen.  Wm.  222. 
Hedge,  Barnabas.  246. 

Abby.  246. 
Henshaw,  Samuel.    202,  215, 
273. 

Herrick,  Abbie.  262. 
Heyman,  Samuel.  60. 
Heywood,  Abiel.  240. 

Benjamin.    202,  215. 
Hibbins,  Anne.  50. 

William.  42. 
Hichborn,  Benjamin,  298,  307, 
321. 

Higgins,  Jonathan.  269. 
Higginson,  John.    90,  122,  126, 
137,  164. 

Nathaniel.  321. 

Stephen.    124,  128. 
High  Admiral.  75. 
Hill,  Aaron.  239. 

A.  Josie.  207. 

Edward.  320. 

John.    90,  151,  155. 
Hillard,  George  S.  234. 
Hiller,  Joseph.  81. 
Hilliard,  Francis.  274. 
Hillman,  Beriah  T.  271. 
Hinckley,  Isaac.  108. 


428  INDEX  TO  THE  JUDICIAL  HISTORY. 


Hinckley,  Nathaniel.  269. 

Samuel.  273. 

Thomas.  6,  13,  15,  54,  60. 
Hinckes,  John.    51,  52. 

HlNGHAM,  41. 

Hitchcock,  Luke.  32. 
Hoab,  Ebenezer  R.    176,  193, 
244,  250. 

George  F.  196. 

Samuel.    193,  226,  277. 

Sarah.  193. 
Hobbs,  Ebenezer.  240. 
Hodge,  Horace  I.  273, 
Hodges,  Charlotte.  189. 

James.  189. 
Holmes,  Amelia  L.  184. 

John.  146. 

Oliver  W.    179,  180,  184. 
William.    18,  19. 
Holton,  Samuel.    124,  130,  201, 

238,  271. 
Honolulu.  289. 
Hooke,  Francis.  90. 
Hookee,  John.    202,  204,  216, 
272. 

Hopkins,  John.    255,  264. 

Mark.    113,  163,  298,  304. 

Moses.  237. 

Stephen.  13. 

Timothy.  304. 

W.  S.  B.  252. 
Hopkinson,  Thomas.    244,  250. 
Hoppin,  Abby  B.  184. 

Amy.  184. 

Henry.  184. 
Horsford,  Mary  G.  232. 

Professor.    232.  ... 
Hoskins,  John.  31. 
Hough,  Atherton.  42. 
Hovey,  Ivory.  302. 

James.    297,  302. 
Howard,  Daniel.    202,  218. 
Howe,  Judge.  249. 


Howe,  Nathaniel  S.  271. 

Samuel.    244,  245. 
Howland,  John.    13,  20. 
House  of  Representatives.  169. 
Hoyt,  Elihu.  238. 
Hubbard,  Caleb.  238. 

Nathaniel.    77,  87,  89,  96, 
115,  116,  118,  163. 

R.  B.  273. 

Samuel.    179,  187,  189. 
Thomas.  89. 
Hubbell,  Wolcott.    204,  222, 
237. 

Huckens,  Thomas.  20. 
Hudson,  Charles  H.  271. 
Huggins,  Elisha.  304. 

John.  304. 
Hughes,  James.  323. 
Hull.  41. 

William.    202,  214. 
Humphrey,  John.    24,  25,  36, 

37,  42,  292. 
Hunt,  Ephraim.  143. 
Huntington,  Charles  P.  207, 
227. 

Elizabeth  W.  227. 

Rev.  Dana.  227. 
Hurd,  Francis  W.    209,  229. 
Hutchins  &  Wheeler.  265. 
Hutchinson,  Edward,  88,  89, 

150,  151,  153,  154,  167. 
Eliakim.    150,  153. 
Elisha.  43,  60,  90,  137,  150, 

151,  153. 

Foster.    87,  97, 151,  154, 167. 

Historian.  26. 

Thomas.    85,  86,  87,  89,  91, 

97,  150,  151,  154,  155,  167, 

305,  308. 
Thomas,  Jr.  155. 
William.  37. 
Huzzey,  Christopher.  142. 
Jetb.ro.  274. 


INDEX  TO  THE  JUDICIAL  HISTORY.  429 


Huzzey,  Josiah.    240,  274. 

Obed.  143. 

Stephen.    143,  202. 

Timothy.  274. 

Zacheus.  240. 
Hyslop,  William.  185. 
Impeachment,  276. 
Ingall,  Jonathan.  238. 
Ingersoll,  Charles  J.  272. 
Ingham,  Mary.  19. 

Thomas.  19. 
Jackson,  Abraham.  20. 

Charles.    179,  187,  189,  222, 
313. 

Jonathan.  187. 
Jacobs,  Deborah.  94. 
James,  Helen.  231. 
Jar  vis,  Delia.  308. 
Jay,  Ch.  Justice.  99. 
Jeffries,  John.  89. 
Jenney,  John.    6,  13. 
Jennison,  Judge.  156. 

William.    157,  159. 
Jernigan,  William.    201,  212. 
Jewell,  Harvey.  184. 
Johnson,  Delia  M.  291. 

Edward  C.  291. 

Isaac.    22,  24,  25,  42. 

Widow.  149. 

William.  43. 
Johonnot,  Samuel  C.  321. 
Joliffe,  John.  60. 
Jones,  Edward.  241. 

Isaac  F.  273. 
Judges.    54,  112,  120,  130,  136, 
141,  142,  145,  150,  156,  204, 
207,  209,  210,  236,  244. 
Judges,  Com.  Pleas.  252. 

Essex.  122. 

Inferior  Court.  106. 

Insolvency.     269,  270,  271, 
272,  273,  274.  275. 

Pension.  177. 


Judges,  Probate.  268,  269,  270, 
271,  272,  273,  274,  275. 

Probate  &  Insolvency.  269, 
270,  271,  272,  273,  274,  275. 

Removal  of.  276. 

Salaries.  177. 

Superior  Court.   252,  253. 

Sup.  Judicial  Ct.    178,  179. 

Superior  Ct.  Judicature.  86. 
Judicial  System  Mass.  Col. 
36,  41. 

Justices  of  the  Peace.  16,  5 
Kendall,  Jonas.  242. 
Kent,  Benjamin,    297,  319. 

Richard.  124. 
Kilham,  David.  202. 
Kimball,  Benjamin.    204,  241. 
King,  John  G.  276. 

William  S.  275. 
Kingman,  Hosea,  264. 
King  Philip's  War.  146. 
King's  Advocate.  75. 

Province.  51. 
Kingston.  146, 
Kinnicutt,  Thomas.  275. 
Kirk,  Col.  Percy.  52. 
Kittredge,  Catherine.  246. 

Thomas.    238,  246. 
Knapp,  Elizabeth.  182. 

John.    322,  323. 
Kneeland,  William.  166. 
Knowlton,  Fatima.  199. 

Hosea  M.    286,  291. 

Marcus  P.  180,  199,  255, 
260,  264. 

Merrick,  199. 
Ladd,  Charles  R.  272. 
Lamb,  Samuel  O.  272. 
Langdon,  Timothy.  285. 
Lathrop  &   Lothrop,  Barna- 
bas.   6,  14,  15,  54,  60,  106, 
108,  163. 

Freeman  H.  269. 


430  INDEX  TO  THE  JUDICIAL  HISTORY. 


Lathrop,  Isaac.    107,  110,  145, 
147,  166. 
John.    180,   199,   255,  263, 
321. 

Rev.  John.  108. 
John  P.  199. 

Joseph.    107,  110,  121,  143. 

Maria  M.  112. 

Mehitabel.  112. 

Meletiah.    110,  147. 

Samuel.  239. 

Sarah.    110,  147. 

Thomas.  112. 
Lathrop's  Reports.  199. 
Lawrence,  Edwin.  271. 

William.    137,  138,  140. 
Lawrence  &  Glidden.  250. 
Lawton,  Frederick.    255,  267. 

George  F.    267,  273. 

James.  267. 

Sarah  S.  267. 
Lazell,  Nabby.  221. 

Sylvanus.  221. 
Leach,  Caroline  W.  264. 

Philander,  264. 

Sarah  T.  264. 

William.  31. 
Leavitt,  Jonathan.    202,  204, 
216,  223,  273. 

Rev.  John.  216. 
Lechford,  Thomas.  292. 
Lee,  Joseph.    89,  137,  138,  141. 
Leland,  Sherman.    274,  276. 

William  S.  274. 
Leonard,  Anna.  147. 

Apollos,  116. 

Rev.  Abiel.  212. 

Daniel.    297,  302,  324. 

Ephraim.    115,  119. 

George.    115,  116,  118,  119, 
120,  147,  163,  270. 

George,  Jr.    164,  270. 

George,  2d.    115,  118,  163. 


Leonard,  James.  117. 

Thomas.    115,  117,  118. 

Zachariah.  119. 

Zephaniah.    115,  248,  303. 
Leverett,  John.    42,  87,  93, 
165. 

Lewis,  Ezekiel.  88. 
Librarian  of  Harvard.  135. 
Lidget,  Charles.    16,  18,  55. 

Elizabeth.  117. 

Peter.  117. 
Lilley,  Charles.  265. 

Charles  S.    255,  265. 

Cynthia.  265. 
Lincoln,  Abraham.  241. 

Benjamin.   89, 151,  323,  324. 

Enoch.  308. 

Levi.     179,  188,  192,  276, 
298,  308. 
Lindall,  Timothy.    124,  127. 
Lieut.  Governor.  161. 
Lithgow,  William.  285. 
Litigations.  293. 
Little,  Ann.  147. 

Charles.  148. 

Isaac.    145,  147. 

John.  145. 

Mary.  149. 

Sarah.  148. 

Thomas.  147. 

William.  241. 
Livermore,  Caroline.  226. 

Edward,  222. 

Edward  St.  Loe.  226. 

Samuel.    138,  322. 
Locke,  Joseph.  240. 
Lockwood,  Edmond.  31. 
Long,  Charles  L.  272. 
Lord,  Eunice.  196. 

George  R.  271. 

Nathaniel.    196,  271. 

Nathaniel  J.  195. 

Otis  P.    180,  196,  254,  256. 


INDEX  TO  THE  JUDICIAL  HISTORY.  431 


Lord,  Samuel  P.  241. 
Loring,  Abigail.  111. 

Caleb  W.  199. 

Charles  G.    182,  199. 

David.  111. 

Edward  G.    275,  276,  277. 

Elizabeth  S.  200. 

Francis  C.  199. 

William  C.    ISO,  200. 
Lothrop.    See  Latheop. 
Louisburg.  129. 
Louisiana.  225. 
Lowell,  Charles.  322. 

John.     124,  129,  186,  223, 
300,  320,  321,  322. 

John,  Jr.    321,  323. 

Eev.  John.  300. 
Ludlow,  Roger.    36,  42. 

Mr.  31. 
Lusher,  Eleazer.  42. 
Lyde,  Edward.    150,  152. 
Lyman,  Erastus.  239. 

General.  303. 

Jonathan  H.  239. 

Joseph.     202,  216,  239,  273. 

Luke..  273. 

Samuel,  202. 

Samuel  F.  273. 

William.    321,  323. 
Lynde,  Alonzo  V.  273. 

Benjamin,  78,  87,  91,  156, 
164. 

Benjamin,  Jr.    87,  91,  124, 
125,  128. 

John.  60. 

Joseph.    136,  138. 

Simon.    16,  18,  53,  55. 
Macey,  Francis.  240. 

Thomas.  142. 
Mack,  Helen  S.  267. 

Sewall  G.  267. 
Mackintosh,  Henry.    115,  117. 
Magistrates.    34,  37. 


Mahoney,  Jeremiah  T.  271. 
Maine,  Sebeus  C.    208,  229. 
March  ant,  Cornelius.  271. 
Marion,  Joseph.  167. 
Marsh,  Ebenezer.  202. 

Perez.    113,  114. 
Marshal.    49,  54,  109. 

General.  57. 
Marston,  Benjamin.     88,  89, 
112,  124,  127,  150. 

Charles.  289. 

Elizabeth.  150. 

George.    269,  286,  289. 

Nancy  C.  289. 

Nympkas.    269,  290. 

Patience.  182. 
Martha's  Vineyard.  58,  59,  68, 

120,  142. 
Martin,  Emily  A.  261. 

Jessie.  261. 

Roxie  B.  261. 
Mason,  Albert.    232,  255,  261. 

Albert  T.  261. 

Arlina.  261. 

Jonathan.    320,  323. 

Robert.  51. 

Stephen.  60. 
Massachusetts  Company.  22. 
Masters,  Giles.  53. 
Mather,  Increase.  58. 

Samuel.    132,  136,  165. 
Mattoon,  Charles.  272. 
Maverick,  John.  49. 

Samuel.  49. 
May,  John  W.    210,  231. 
Mayflower,  Ship.  154. 
Mayhew,  Joseph.  121. 

Mathew.    121,  164,  201,  212, 
238. 

Mathew,  2d.    122,  164. 
Paine,  121,  122,  164. 
Thomas.    90,  121,  122,  142. 
Thomas  G.    270,  271. 


432  INDEX  TO  THE  JUDICIAL  HISTORY. 


Mayhew,  Zacheus.  91,121,122, 

143,  164. 
Maynard,  Elisha  B.    256,  264. 
Hannah,  264. 
Walter,  264. 
McCafferty,  Mathew  J.  210, 
231. 

McDonald,  Margaret  J.  265. 

Mary,  265. 

Patrick.  265. 
McIntire,  Charles  J.  273. 
McKim,  John  W.  275. 
McLoon,  Eliza  E.  184. 
Menzies,  John.  76. 
Merrick,  Pliny.    179,  192,  241, 
244,  247. 

John,  321,  323. 

Ruth,  192. 
Merrill,  Giles.  228. 

James  C.    208,  228. 

John.  238. 

Lucy.  228. 
Metcalf,  Hanan.  190. 

Mary,  190. 

Stephen.  202. 

Theron.    179,  190. 

Thomas.  287. 
Micholson,  Edward.  49. 
Middlecot,  Richard.  60. 
Milk  Street.  101. 
Miller,  Anna.  183. 

Edward.    183,  249. 

Ellen.  244. 
Mills,  Helen  S.  227. 
Minot,  George  R.    202,  205,  219, 
223,  224,  275,  314,  320,  322, 
323. 

James.  151. 

John.  230. 

Jonas.  220. 

Mary.  220. 

Stephen.    204,  220. 

William.    204,  223,  322. 


Mitchell,  dishing.  220. 

Jannet.  220. 

Nahum.    204,  220. 
Mompesson,  Roger.  76. 
Morey,  Fanny.  212. 

Samuel.  212. 
Morris,  Henry.    244,  251. 

Oliver  B.    197,  251,  272. 

Richard.  31. 
Morse,  George  W.  232. 

Robert  M.    185,  232. 
Morton,  Abiah.  287. 

Amiah.  308. 

Charlotte.  183. 

Eliza  S.  225. 

Ephraim.    145,  146. 

George.    146,  225. 

James  M.    180,  199. 

John.  225. 

Joseph.    287,  308. 

Julian.  146. 

Marcus.    178,  179,  183,  189, 
192,  226. 

Marcus,  Jr.    180,  183,  204, 
229,  254,  256. 

Mary.  189. 

Nathaniel.    146,  189. 

Nathaniel,  Jr.  237. 

Perez.     285,  286,  287,  298, 
308,  323. 
Munroe,  Israel.  323. 
Murray,  John.  158. 
Nantucket.    58,  59,  68,  103, 

106,  142. 
Narragansett  Country.  51. 
Nash,  Abigail.  227. 

John.  227. 

Lonson,  238. 

Stephen  G.    207,  227. 
Nelson,  Albert  H.    207,  226. 

Dr.  John.  226. 

Lucinda.  226. 
Nesmith,  George  W.  227. 


INDEX  TO  THE  JUDICIAL  HISTORY.  433 


Neutral  French.  149. 
Nevens,  John.  238. 
Newberry,  Walter.  54. 
Newcomb,  Horatio  G.  276. 

Richard  E.  271. 
New  England  Guards.  182. 
New  England's  Memorial.  146. 
New  Hampshire.  53. 
Newman,  John.    121,  122. 
Newton,  Ichabod.  238. 

Thomas.    56,  60,  76,  80,  90. 
New  York.  59. 
Nichols,  Perkins.  275. 

Col.  Richard.  48. 
Nicholson,  Francis.  55. 
Nicolls,  Richard.  142. 
Niles,  Samuel.    151,  155,  216. 

Rev.  Samuel.  216. 

Stephen.  202. 
Noble,  David.    201,  211. 
Noddle's  Island.  46. 
Noman's  Land.  120. 
Norden,  Nathaniel.  88. 
Norton,  Beriah.  201. 

Ebenezer.  121. 

Joseph.    121,  122. 

Samuel.    121,  122. 
Nowell,  Increase.     24,  25,  36, 

37,  42,  43. 
Noyes,  Daniel.    164,  271. 

Thomas.    122,  126. 
Nye,  Joseph.    108,  213. 
Oakes,  Uriah.    288,  300. 
Olcott,  Helen.  288. 

Mills.  288. 
Old  Colony  Boundary.  4. 
Old  South  Church.  114. 
Oliver,  Andrew.    89,  128,  129. 

Daniel.    298,  304. 

Peter.  87,  92,  145. 
Orne,  Azor.    124,  130. 

Henry.    208,  228. 


Osborne,  Sir  Danvers.  85. 
Otis,  Harrison  G.  204,  223,  313» 

321,  322,  323. 

James.    107,  111,  112,  163, 
319. 

James,  Jr.    78,  81,  297,  299. 
Col.  James.    78,  210. 
John.    91, 106,  109,  111,  147, 
163. 

John,  Jr.    107,  110. 

John,  Gen.  109. 

Joseph.    145,  147. 

Mary.  147. 

Mary  A.  78. 

Mercy.    100,  111. 

Nathaniel.  165. 

Samuel  A.  223. 
Overing,  John.  81. 
Oyer  &  Terminer.    48,  54,  55, 

60,  89,  90. 
Padelford,  Judge.  188. 

Seth.  270. 
Page,  John.    31,  54. 
Paine,  Charles.  322. 

Elijah.    204,  222,  238. 

Eunice.    100,  185. 

Henry  W.  266. 

Nathaniel.    163,  275. 

Robert.    321,  323. 

Robert  T.  87,100,157,179, 
185,  286,  297,  301,  322. 

Oliver  C.  204. 

Stephen.    115,  119,  164. 

Thomas.    100,  107,  110,  185, 

322,  323. 
Timothy.    89,  167. 

Palmer,  John.  55. 

Joseph.  151. 

Thomas.    150,  152. 

Walter.  31. 
Parker,  Daniel.  107. 

Eliza  D.  200. 


28 


434  INDEX  TO  THE  JUDICIAL  HISTORY. 


Parker,  Horatio  G.  272. 

Isaac.     178,  179,  180,  321, 
323. 

John  A.    178,  249. 

Richard  G.  200. 

Judge  Wm.  102. 
Parker's  Island.  180. 
Parmenter,  Mary.  230. 

William  E.    210,  230. 
Parsons,  John.  91. 

Joseph.    181,  133. 

Mary.  133. 

Theophilus.    178,  180,  187, 
223,  298,  307,  313,  321. 
Partridge,  Oliver.    132,  136. 

Samuel.    91,  131,  132,  165. 
Patent,  Old  Colony.  4, 350, 356. 
Payne,  John.  167. 

Nathaniel.    115,  117. 
Peabody,  Augustus.  277. 

Ellen.  195. 

George.  195. 

Oliver  B.  275. 
Peakes,  Mr.  37. 
Pearson,  William.  238. 
Pease,  Joseph  T.  271. 

Richard.  271. 
Peck,  A.  Perry.  273. 

Nicholas.    115,  117. 

Shubael.  116. 
Pelham,  Herbert.  42. 
Pembekton,  Samuel.    151,  155. 
Pemmaquid.  83. 
Penn,  James.  49. 
Pension  of  Judges.  177. 
Pepperell,  William.  90. 
Perkins,  Jonathan  C.    244,  249. 
Perley,  Jonathan,  Jr.  271. 
Perry,  Arthur  E.  291. 

Daniel.  202,  237. 
Phelps,  Martin.  239. 

William.  31. 
Phillips  Academy.  130. 


Phillips,  Frederick.  55. 
Henry.  138. 
Jane.  288. 

John.    60,  130,  136,  138. 

Samuel.    124,  130,  201. 

Stephen  C.  288. 

Stephen  H.  251, 275, 286, 288. 
Philosophical  Society.  129. 
Phinney,  Elias.  226. 

Elizabeth  B.  226. 
Phips,  Spencer.  137. 
Phipps.    56,  58,  82,  85,  165. 
Pickering,  John,  Jr.  201. 

Timothy.    124,  130. 
Pickman,  Benjamin.    124,  128. 

Dudley  L.  276. 
Pierce,  Daniel.    122,  125. 

John.  2. 
Pike,  Robert.    43,  60. 
Pilgrim  Compact.  3. 
Pillsbury,  Albert  E.  286,290. 

Elizabeth.  290. 

Josiah  W.  290. 
Pinchon,  John.    31,  42,  51. 

William.    24,  25,  36,  42. 
Pingree,  Thomas  P.    194,  200. 
Piper,  John  J.  276. 
Pitman,  Benjamin.  259. 

Elizabeth  W.  267. 

Helen  M.  267. 

Mary  Ann.  259. 

Robert  C.  255,  259. 
Plaisted,  Ichabod.  90. 

John.  90. 
Plymouth  Colony.  58. 
Pomeroy,  Ebenezer.    131,  134. 
Pope,  Edward.    201,  212. 

Ruf  us  S.  269. 

Seth.  20. 
Port  Royal.  83. 
Porter,  Daniel.  246. 

Eleazer.    131,  132,  134,  136, 
165,  272. 


INDEX  TO  THE  JUDICIAL  HISTORY.  435 


Porter,  EHsha.    298,  307. 
Sally.  246. 

Samuel.    131,  204,  239,  298, 
305. 

Sarah.  246. 
Povey,  John.  56. 
Pownall,  Governor.  149. 

Thomas.  85. 
Pratt,  Benjamin.    186,  301. 

Benajah.  20. 

Peter.  256. 
Prence,  Thomas.    6,  13. 
Prentice,  Rev.  John.  156 
Prentiss,  C.  G.  296. 
Prescott,  Alfred  A.  273. 

Benjamin.    88,  138. 

Charles.  138. 

James.    202,  213,  273,  276. 

James,  Jr.    321,  323. 

Oliver.    205,  224,  277. 

Col.  Oliver.  224. 
Preston,  Capt.     78,  102,  186, 
305. 

Prince,  John.  213. 

John,  Jr.  238. 
Privy  Council.    65,  68,  69. 
Probate  Affairs.    75,  162. 

Court.  162. 

Judges.    102,  163,  164,  165, 
166,  167. 

Registers.  162, 163, 164, 165, 
166,  167. 
Proctor,  Thomas  W.  232. 
Province  Charter.  151. 

Mass.  58. 
Provincial  Period.  162 
Provost  General.  56. 

Marshal.  53. 
Public  Lands.  16. 
Punchard,  John.  238. 
Purchase,  Oliver.  43. 
Putnam,  Aaron  H.  323. 

Elizabeth.  230. 


Putnam,  James.    297,  301,  306. 

Col.  Jesse.  230. 

John  P.    254,  257,  275. 

Martha  Ann.  230. 

Samuel.    179,  188,  246. 
Pyle,  William.  142. 
Pynchon,  John.    91,  131,  132, 
134,  165. 

John,  Jr.    131,  165. 

John,  2d.    133,  134. 

John,  3d.  131. 

Joseph.    89,  131,  134. 

Stephen.  239. 

William.    132,  297,  300. 

William,  Jr.  131. 

William,  Sr.  131. 

William,  2d.  134. 
Quakers.  9. 
Quebec.  224. 
Quincy,  Abigail.  224. 

Edmund.    95,  151,  156. 

John.  151. 

Josiah.    82,  151,  187,  205, 

224,  319,  320,  321,  323. 
Samuel.    82,  185,  297,  299, 

319,  321,  323. 
Samuel,  Jr.  321. 
Rand,  Benjamin.    241,  246. 
Randolph,  Edward.    51,  52,  56, 
293. 

Ranney,  Ambrose  A.  233. 
Ranney  &  Morse.  231. 
Rantoul,  Robert.    238,  276. 
Read,  John.  81. 

Nathan,  213. 

William.  297. 
Recorder.  44. 

Reed,  Chester  I.    254,  258,  259. 
Elizabeth.  258. 
John.    202,  217. 
Timothy.  269. 
William.    78,  87,  99,  151, 
154,  258,  299,  319. 


436 


INDEX  TO  THE  JUDICIAL  HISTORY. 


Reeve,  Tappan.  190. 
Reeves,  Jacob.  240. 
Register  Deeds.    156,  157. 

Districts.  273. 
Register  Insolvency.    269,  270, 

271,  272,  274,  275. 
Probate.  268,269,270,271, 

272,  273,  274,  275. 

Prob.   &  Insolvency.  270, 
271,  272,  273,  274,  275,  276. 
Remington,   John.    137,  141, 
202,  213. 
Jonathan.    87,  88,  95,  137, 
139,  141,  165. 
Representative  System.  8. 
Revell,  John.  25. 
Rice,  Jonas.  158. 
Nathan.  320. 
William  W.  275. 
Richards,  Alice.  146. 

John.    43,  53,  60,  69,  87,  90, 
92. 

Joseph.  89. 

Thomas.    60,  92,  146. 
Richardson,  Amos.    54,  293. 

James  B.    255,  265. 

John.  265. 

Luther.  322. 

William  A.  273. 
Richmond,  Ezra.  116. 

John.  20. 
Riddell,  Henry.  274. 
Ripley,  Franklin.  272. 

Jerome.  238. 

Martha  B.  257. 
Ritchie,  Saba.  199. 

Sophia.  199. 

William.  199. 
Bobbins,  Edward  H.    202,  217> 
274. 

Roberts,  Richard  B.  321. 
Robinson,  James  T.    269,  270. 
John.  79. 


Robinson,  Roland.  108. 
Rockwell,  Julius.  193,  254, 256. 

William.  31. 
Rogers,  Abner.  182. 

Daniel,  164. 

Rev.  Daniel.  301. 

Eliza.  301. 

Jeremiah  D.    298,  306. 

John  Gray.  228. 

Samuel.    125,  164. 
Rolfe,  Benjamin.  167. 
Root,  Lydia.  252. 

Spencer.  252. 
Ropes,  James.  271. 

Nathaniel,  87,  89,  98,  124, 
128,  164. 
Rossiter,  Edward.  42. 
Ro swell,  Sir  John.  21. 
Rowe,  John.    321,  323. 

Joseph.  323. 
Ruchbrock,  Ovid.    91,  133. 
Ruggles,  Elisha.    204,  241. 

Nathaniel.  240. 

Timothy.    89,  157,  160. 
Rules,  Amended.    313,  314. 
Russell  Chambers.    77,  87,  97, 
137,  140. 

Charles.  141. 

Daniel.    77,  97,  141. 

James.     43,  136,  137,  138, 
141,  165. 

John.    107,  124. 

Mary  Ann.  257.. 

Richard.    42,  138. 

Thomas.    208,  229,  254,  257, 
321. 

Saffin,  John.    87,  93,  115,  116. 
Salaries.  177. 
Salisbury,  Rev.  Wm.  185. 
Saltonstall,  Anna.  228. 

Leverett.  247. 

Mehitabel.  96. 

Mr.  37. 


INDEX  TO  THE  JUDICIAL  HISTORY. 


437 


Saltonstall,  Muriel.  126. 
Nathaniel.     43,  51,  60,  122, 
126. 

Dr.  Nathaniel.  228. 

Richard,    24,  42,  87,  96, 126. 

Richard,  Jr.  42. 

Sir  Richard.  22,  25,  31. 
Sampson,  Elizabeth  C.  198. 

Ezra  W.  198. 
Sandwich.  7. 
Sanford,  John.  54. 
Sanger,  George  P.    244,  250. 

Rev.  Ralph.  250. 
Sargeant,  Nathaniel  P.  87, 

178,  297,  300. 
Sarson,  Richard.    121,  122. 
Saunders,  Daniel.  262. 
Savage,  Habijah.  138. 

Hope.  182. 

Mary.  187. 

Samuel.  201. 

Samuel  P.     137,  141,  182, 
187,  202,  213. 

Thomas.  43. 
Sawyer,  Artemas.    322,  323. 

Joseph.  89. 
Scituate.  7. 
Scruggs.  37. 
Scudder,  David.    201,  211. 

Hannah.  258. 

Henry  A.    255,  558. 

Josiah.  258. 

Zeno.  258. 
Sears,  Richard.  204. 
Seaver,  Ebenezer.  246. 
Sedgwick,  Benjamin.  307. 

Theodore.     179,    187,  189, 
298,  307. 
Selfkidge,  Thomas  O.  322. 
Sergeant,   Rev.  Christopher. 
99. 

Epes.  125. 
Erastus.  163. 


Sergeant,  Nathaniel  P.  99, 
180. 

Peter.    60,  61,  90,  150,  152. 
Sessions  Judges.  242. 
Sever,  James.    145,  148,  149. 

Nicholas.    145,  148. 

Sarah.  148. 

William.    145,  149. 

Winslow.  145. 
Sewall,  David.    87,  102,  298; 
303. 

Jonathan.  79,  82,  101,  297, 
301. 

Samuel.  43,  00,  61,  69,  86, 
87,  90,  91,  102,  167,  178, 
179,  180,  294,  319. 

Stephen.  60, 87,  88, 164,  300. 
Sharpe,  Samuel.  25. 

Thomas.    24,  42. 
Shattuck,  George  O.  185. 
Shaw,  Frederick  R.  270. 

Lemuel.    157,  178,  194,  276. 

Oakes.  181. 

Susannah.  181. 

Rev.  Dr.  Wm.  218. 
Shays  Rebellion.  120. 
Sheffield.  .112. 
Sheldon,  Henry  N.    255,  265. 
Sherburne.  142. 
Sheriff.  53. 
Sherman,  David.  262. 

Edgar  J.    255,  262,  286,  290. 

Fanny.  262. 
SniRLEV,  Governor.  101. 

John.  167. 

William.    78,  84. 
Shrimptox,  Samuel.   16,  18,  55. 
Shurtleff,  Wm.  S.  272. 
Simmons,  Abbie  L.  262. 

Fanny  B.  263. 

Stephen.  262. 

Stephen  P.  263. 

William.  228. 


438  INDEX  TO  THE  JUDICIAL  HISTORY. 


Simms,  Thomas.  196. 
Skiffe,  Benjamin.   90, 121,  122, 
164. 

Stephen.    106,  108. 
Skinner,  Thomas  J.  201. 
Sloan,  Douglas  W.  237. 
Slocum,  Edward  T.    269,  270. 

Elisha.  237. 

Holder,  Jr.    313,  322,  323. 
Small,  Simeon  N.  269. 
Smead,  Albert.  241. 
Smith,  Benjamin.   121, 164,  239, 
271. 

Daniel.    14,  15,  54. 

Ebenezer.    121,  122. 

Henry.  272. 

Jacob.  90. 

Jeremiah,  222. 

John.  43. 

John,  Jr.  239. 

Josiah.  238. 

Julia  R.  234. 

Mary.  216. 

Ralph.  6. 

Richard.  55. 

Robert  D.  266. 

Samuel.  271. 

Thomas.    107,  111. 

William.  241. 

William  L.  272. 

Rev.  William.  216. 
Snow,  Marke.  20. 
Sohier,  Edward.    193,  320,  323. 
Solicitor  General.    82,  284. 
Somerville,  Henry  V.  182. 
Soule,  Augustus  L.    180,  197, 
199. 

Gideon  L.  197. 
Southcott,  Thomas.  22. 
Southwick,  Frederick  W.  276. 
Southworth,  Constant.  14. 

Thomas.  13. 


Sparhawk,  Xathaniel.  89, 322, 
323. 

Sparrow,  Jonathan.    106,  109. 

Pandora.  109. 

Richard.  109. 
Spaulding,  Amos.  226. 

Samuel  T.  273. 
Spencer,  Mr.  37. 
Spooner,  Ephraim.    146,  202, 
218. 

Samuel  B.  272. 

Sarah.  218. 

Thomas.  218. 

William.    116,  119. 
Sprague,  John.    55,  202,  215, 
298,  306. 

Peleg.  183. 

Samuel.  166. 
Spry,  Dr.  Wm.  76. 
Spurr,  John.  241. 
Standish,  Miles.  13. 
Stanley,  Clara.  262. 

George.  262. 

Jane.  262. 
Staples,  Hamilton  B.   255,  260. 

Susan.  260. 

Welcome.  260. 
Starkweather,    Ezra.  204, 
239. 

Stearns,  George  M.  264. 
Stebbins,  Asa.  238. 

James.  239. 

John  M.  272. 
Steele,  Thomas.    157, 158,  160. 
Sterling,  Earl  of.  142. 
Stevens,  Charles  E.  276. 

Mary  J.  G.  266. 

Oliver.  231. 

William  B.    255,  266. 

William  F.  266. 
Stiles,  Ezra.  216. 
Stockbridge,  Benjamin.  146. 


INDEX  TO  THE  JUDICIAL  HISTORY. 


439 


Stockbridge,  David.  140. 
Stoddard,  Anthony.    150,  151, 
153. 

John.    91,  131,  133,  165. 

Simeon.  153. 

Solomon.  165,  239. 
Stone,  Joshua  C.  270. 

Josiah.  138. 
Storey,  Charles  W.  275. 
Story,  Isaac.  323. 
Strong,  Abigail.  133. 

Caleb.    161,  165,  298,  307. 

Elizabeth.  133. 

John.    133,  307. 

Simeon.    179,  187,  245,  298, 
304. 

Solomon.    244,  245. 
Stoughton,  Israel.     37,  42. 
William.    16,  17,  42,  51,  53, 

55,  60,  69,  83,  84,  86,  90, 

166. 

Stuart,  Abigail.  111. 
Students  at  Law.  320. 
Sturgis,  Mehitabel.  112. 

Russell.  241. 

Samuel.  107. 
Sturtevant,  Hannah.  148. 

John.  148. 
Sullivan,  George.    322,  323. 

James.  87, 101, 286, 298,  306, 
321,  322. 

John.   101,  298,  304. 

Richard.    322,  323. 

William.    181,  210,  228,  234, 
276,  287,  313,  321, 322. 
Sumner,  Charles  P.  322. 

Increase.    179,  185,  262, 320, 
323. 

John.    121,  122. 

William  H.  322. 
Supreme  Ordinary.  53. 
Swain,  Eliza  Endicott.  258. 


Swain,  John.  142. 

Richard.  142. 

Samuel.  274. 

Sylvia.  258. 

Thomas.  258. 
Swan,  Thomas.  165. 

&  Sedgwick.  256. 
Swett,  Charlotte.  222. 

Dr.  John  B.  222. 

Samuel.    204,  222,  241. 
Sweetser,  Theodore  H.  198. 

&  Gardner.  267. 
Swift,  Elizabeth  W.  290. 

Oliver  C.  290. 

Samuel.  297,  299,  319. 
Sylvester,  Dinah.    18,  19. 

Joseph.    18,  19. 
Symonds,  Samuel.  42. 
Taft,  Henry  W.  270. 
Talrutt,  Jerud.  20. 
Tarbox,  John  K.  262. 
Tasker,  John.    124,  128,  129. 
Taunton.  7. 

Taylor,  Rev.  Edward  T.  257. 

Nellie.  257. 

William.  84. 
Telegraph  Wires.  178. 
Terry,  Thomas.  116. 
Thacher,  Charles  Jr.  269. 

George.    179,  187,  285. 

John.    14,  106,  107,  110,  111, 
121,  143. 

Oxenbridge.  300. 

Peter,  107,  110,  111,  187. 

Peter  O.    205,  225. 

Rev.  Peter.  225. 
Thatcher,  Anthony.  108. 

David.  201. 

John.  108. 
Thaxter,  John.    320,  323. 

Leavitt.  271. 

Samuel.    88,  143,  145. 


440 


INDEX  TO  THE  JUDICIAL  HISTORY. 


Thayer,  Adin.  276. 
Thomas,  Benjamin  F.    179,  192, 
275. 

Captain.  6. 

Deborah.  147. 

Frances  R.  259. 

Hannah.    94,  221. 

Isaiah.    157,  192,  241. 

John.    204,  221. 

Gen.  John.    94,  307. 

Joshua.    220,  246,  320,  324. 

Rev.  M.  G.  259. 

Nathaniel.     53,  87,  91,  94, 
107,  145,  146,  166. 

Nathaniel,  Jr.    145,  147. 

William.    13,  94. 
Thompson,  Charles  P.    255,  261. 

Eleanor.  251. 

Elizabeth  S.  251. 

Francis  M.  272. 

Francis  N.  272. 

Frederick  M.  261. 

Jacob.  107. 

Susannah.  261. 

William  W.  251. 
Thurston,  William.  323. 

TlCONDEROGA.  161. 

Tilden,  Calvin.  204. 

David.  241. 
Tilton,  Josiah.    121,  122. 

Peter.    43,  131,  132. 
Tirrell,  Frederick  E.  271. 
Tisdale,  Anna.  147. 
Tobey,  Apollos.    204,  238. 

Charles  B.  259. 

Elisha.    115,  119. 

Nannie  B.  J.    259.  „ 

Samuel.    116,  201,  211. 
Torrens,  Wm.  H.  320. 
Towner,  William.  237. 
Townsend,  Penn.    88,  137,  150. 

William.  152. 
Tracey,  Julia.  190. 


Tracey,  Uriah.  190. 
Train,  Rev.  Charles.  289. 

Charles  R.    286,  289. 

Hepzibah.  289. 
Trask,  Rebecca.  220. 

Stephen.  220. 
Tkeadwell,  John.    202,  213. 
Treat,  Robert.  55. 
Trial  Justices.  292. 
Trowbridge,  Edmund.    82,  87, 

97,  301,  305. 
Trumbull,  John.  320. 
Tudor,  William.    181,  224,  298, 

308,  320,  321,  323. 
Tufts,  Aaron.    204,  242. 

Simon.  138. 
Turner,  Capt.  37. 

Charles.  241. 

John.  145,  150. 
Tweed,  Clara.  200. 

Clara  E.  200. 

Benjamin  F.  200. 
Tyler,  Joseph  H.  273. 

Royal.  323. 
Tyng,  Edmund.    52,  139. 

Edward.    42,  51. 

Jolm.     137,  138,  140,  202, 
213. 

Jonathan.    51,  52,  136,  137, 
139. 

United  States  Marshal.  196. 
Upham,  Charles  W.  306. 

Joshua.    298,  306. 
Upton,  Mary.  227. 
Usher,  Hezekiah.  52. 

John.    18,  51,  52,  55. 
Valentine,  John.    78,  80. 
Van   Couktlandt,  Anthony. 
55. 

Vane,  Henry.  42. 
Varnum,  John.  228. 

Joseph  B.    239,  276. 
Vassall,  William.    24,  25,  42. 


INDEX  TO  THE  JUDICIAL  HISTORY. 


Veazie,  Annie  M.  231. 
Venn,  John.  25. 
Verdicts.  50. 

Vernon,  Fostescue.    321,  323. 
Verry,  George  F.  266. 
Vice  Admiralty.    75,  76. 
Vincent,  Hebron.  271. 
Virginia  Company.  1. 

Governor  of.  54. 
Vose,  Elijah.  257. 

Henry.    254,  257. 

Rebecca  G.  257. 
Vyall.    Samuel.    115,  118. 
Wadswokth,   Christopher.  6, 
146. 

Grace.  146. 

John.    20,  145,  146. 
Wainwright,  John.    124,  127. 
Walker,  Edward.  323. 

John.  240. 

William.  163,201,237,269. 

William  P.  237. 
Walley,  James.  54. 

John.    14,  15,  87,  93. 
Walsh,  Johu.  238. 
Walter,  Arthur  M.    322,  323. 
Walton,  Electa  N.  263. 

George  A.  263. 

Harriet  P.  263. 
Ward,  Artemas.    157,  158,  159, 
160,  167,  202,  205,  214,  224, 
244,  275. 

Jonathan.  158. 

Joshua  H.    244,  247. 

Nahum.    157,  158,  159. 

William,  88,  157,  159. 
Wardwell,  Amy  S.  266. 

Henry.    255,  266. 

Moses.  206. 
Ware,  Jairus.    204,  221,  241. 
Wariner,  Mary.  251. 
Warner,  Jonathan.  202. 
Warren,  Charles  H.    244,  246. 


Warren,  Ebenezer.    204,  221, 
241. 

Henry.    241,  246. 

James.    87,  91,  99,  145,  147, 
148,  150. 

Joseph.  221. 

Dr.  Joseph.    100,  221. 

Mary.  246. 

Mary  S.  221. 

Mercy.  100. 

Nathaniel.  147. 

Penelope.    100,  150. 

Richard.  147. 

Sarah.    147,  150. 

Sloop  of  War.  100. 
Washburn,  Emory.    193,  244, 
247. 

Joseph,  247. 

Seth.    201,  204,  237. 
Waterman,  Andrew  J.  270, 
286,  290. 

Foster.  323. 

Samuel.  201. 

Sarah.  290. 

William.  290. 
Watson,  John.    53,  150,  293. 

Priscilla.  150. 

William.    145,  150. 
Watts,  Samuel.    150,  154. 
Webb,  Christopher.  53. 
Webster,  Daniel.   191, 277,  288. 

John  W.  287. 

Dr.  Johu  W.  ]93. 
Wells,  Benjamin.    322,  323. 

Daniel.    244,  247. 

George  D.    208,  229. 

John.    179,  194,  272,  276. 

Samuel.  154. 
Wells  &  Alvord.  251. 
Wells  &  Davis.  194. 
Welles,  Samuel.  150. 
Welsh,  Thomas.  322. 

Thomas,  Jr.  323. 


442 


INDEX  TO  THE  JUDICIAL  HISTORY. 


Wendell,  Edward.  321. 

Jacob.  138. 

Oliver.    167,  202,  275. 
Wensley,  John.  147. 

Sarah.  147. 
Wentworth,  George  L.  210, 
233. 

Rebecca  L.  233. 

Stacy  H.  233. 
West,  Augustus  L.  270. 

John.    16,  18,  55,  292. 

Nicholas.    22,  24. 
Wetmore,  William.    202,  204, 

219,  220,  298,  308,  321. 
Weyer,  David.    298,  304. 
Wharton,  Richard.    51,  52. 
Wheaton,  Elizabeth.  212. 

Dr.  George.  212. 

Laban.    201,  212,  237. 
Wheeler,  Joseph.    158,  167. 

Louise  F.  291. 

Samuel  H.  237. 

Theophilus.  276. 
Wheelwright,  John.  90. 

Samuel.  90. 
Whitaker,  Aon  E.  K.  266. 

Anthony,  B.  A.  266. 

Katherine  M.  266. 
White,  Ann.  301. 

Daniel  A.  271. 

George.  274. 

Gideon.  302. 

Joanna.  302. 

Moses.  241. 

Samuel.    89,  297,  301. 
Whiting,  Experience.  261. 

Helena.  200. 

Levi  C.  200. 

Lydia  F.  261. 

Nathan.  261. 

Pamelia  N.  200. 

Timothy.  241. 

William.    113,  115. 


Whiting  &  Russell.  257. 
Whitman,  Abigail.  227. 

Benjamin.    208,  218,  227. 

Ezekiel.  220. 

Kilburn.    202,  218. 

Zachariah.  218,  227. 
Whitney,  George.  269. 

John.  241. 

Milton  B.  263. 
Whiton,  Joseph.    204,  222,  237. 
Whittin,  Eliza.  232. 

Seth.  232. 
Wiggin,  Thomas.  42. 
Wilde,  Caroline.  192. 

Samuel  S.    179,  188,  192. 
Wilder,  Joseph.    88,  157,  159, 
160,  167. 

Joseph,  Jr.  158. 
Wilkinson,  Ezra.    254,  256. 
Willard,  Abel.    297,  305,  306. 

Joseph.  167. 

Justin.  157. 

Samuel.    158,  159. 

Simon.  42. 
Willet,  Martha.  116. 

Thomas.    13,  116. 
William  &  Mary.  54, 
Williams,  Bethsheba.  150. 

Benjamin.     116,    119,  164, 
270. 

Elijah.  132. 

Elizabeth  O.  245. 

Ephraim.    131,  135,  136. 

Henry.  270. 

James.    115,  119. 

Gen.  James.  245. 

Israel.    132,  135,  165. 

John.    321,  323. 

John  C.    165,  273. 

John  M.    204,  221,  244,  245, 
276. 

Jonathan.  320. 
Joseph.  151. 


INDEX  TO  THE  JUDICIAL  HISTORY.  443 


Williams,  Lemuel.    245,  246. 

Prudence.  301. 

Samuel.  301. 

Seth.    88,  115,  118. 

Thomas.    132,  136,  323. 

William.    112,  113,  163. 

Rev.  Wm.  135. 
Willis,  Benjamin.    145,  150. 

Nathan.  241. 

Samuel.  115,  116,  119. 
Willoughby,  Francis.  42. 
Winslow,  Bethiah.  111. 

Edward.    13,  145,  150,  154, 
166,  302. 

Elizabeth.    154,  218. 

Isaac.    88,  128, 143, 145, 147, 
149,  166,  218. 

John.    145,  149,  166. 

Gen.  John.  302. 

Josiah.    6,  13. 

Kenelm.  111. 

Mnry.  302. 

Penelope.  147. 

Pel  ham.    297,  302. 

Sarah.    128,  149. 

Thomas.    107,  111. 
Winchester,  Charles  A.  272. 
Winchcomb,  John.  54. 
West,  William.  288. 
Wiswall,  Widow.  146. 
Witchcraft.    18,  50,  62. 
Witnesses.    49,  50,  106. 
Winthrop,  Adam.    60,  88,  150, 
152,  153. 


Winthrop,  Fitz  John.  51. 

James.    166,  202,  214,  273. 

John.    22,  24,  25,  36,  42,  52, 
152,  165,  292. 

Wait.    60,  61,  69,  76,  86,  87, 
90,  91. 

Waitstill.    51,  52. 
Wolcott,  Josiah.    88,  124, 127. 
Wood,  Benjamin.  322. 

Ephraim.    202,  214. 

Harding  P.  260. 

Mary.  214. 

Sarah.  260. 
Woodbridge,  Jahleel.  113,  115, 
163,  201,  211,  269. 

John.  43. 

Timothy.    112,  114. 
Woodworth,  Mehitabel.  19. 

Walter.  19. 
Worth.  John.  121. 

William.    142,  143. 
Worthington,  Erastus.  274. 

John.    298,  302. 
Wright,  Edwin.    208,  229. 

Jesse.  229. 

Nathaniel.  226. 

Philura.  229. 
Writ,  Defect  in.  319. 
Yarmouth.  7. 
York,  Duke  of.  142. 
Young,  John.  55. 

Sir  John.  22. 


LNDEX 

TO  THE 

mTEODUCTOEY  CHAPTER 


Abbott,  Josiab  G.  vi. 
Allen,  Cliarles.    vi,  xi,  xviii. 
Alley,  Leavitt.  xv. 

Trial,  xv. 
Ames,  Ellis,  vi. 
Augustus,  John.  xxi. 
Austin,  James  T.    vi,  xx. 
Bartlett,  Sidney,    vi,  xv,  xvi. 
Bell,  Joseph,  xiv. 

Joseph  M.  xiv. 
Baylies,  William,    vi,  xix. 
Beal,  Thomas  P.  vi. 
Blarney  Stone,  xii. 
Borden,  Lizzie,  xv. 
Burt,  Wm.  L.  xxii. 
Butler,  B.  F.  vi. 
Campbell,  John  A.  xvii. 
Catron,  John.  xvii. 
Chancellor  of  Austria,  xxiii. 
Choate,  Rufus.    vi,  vii,  xiii. 
Clifford,  John  H.    vi.  - 
Coffin,  Timothy  G.    vi,  xx.' 
Count  Johannes,  xxii. 
Court  of  Common  Pleas,  v. 
Court  Supreme  Judicial,  v. 
Cummins,  David,  vi. 
Curtis,  Benjamin  R.   vi,  xv,  xvi. 
dishing,  Caleb,  xvi. 
Dana,  Richard  H.    vi,  xviii. 
Daniel,  Peter  V.  xvii. 
Dewey,  Charles  A.  v. 


Dexter,  Franklin,    vi,  xx. 

Samuel,  xx. 
Dred  Scott,    xvi,  xvii. 
Eddy,  Zachariah.  vi. 
Eliot,  Thomas  D.  vi. 
Evarts,  William  M.  xvi. 
Farley,  George  F.    vi,  ix. 
Fuller,  Henry  H.    vi,  viii. 
Gardner,  William  H.  vi. 
Grier,  Robert  C.  xvii. 
Guild,  George  D.  viii. 
Hale,  John  P.  xviii. 
Hillard,  George  S.  vi. 
Hoar,  Ebenezer  R.  xix. 

Samuel,    vi,  ix. 
Hubbard,  Samuel,  v. 
Jones,  George,  xxii. 
Kenney,  Trial,  xx. 
Knight  of  the   Golden  Spur. 

xxiii. 
Libel  Suits,  xxiii. 
London  Punch,  xxii. 
Lord  Nathaniel  J.  vi. 
Lord  Otis  P.  vi. 
Loriner,  Charles  G.    vi,  xv. 
Lunt,  George,  viii. 
Marston,  George,  xxi. 
Mason,  Jeremiah,  xi. 
Merrick,  Pliny,    vi,  xii. 
Morton,  Marcus,  v. 
Nelson,  Samuel,  xvii. 

(445) 


446      INDEX  TO  THE  INTRODUCTORY  CHAPTER. 


Olcott,  Mills,  xiv. 
Park  John  C.  x. 
Parker,  Joel.  xiv. 
Parsons,  Tkeophilus.  xv. 
Putnam,  Samuel,  v. 
Quincy,  Edmund,  xxiii. 
Rantoul,  vi,  viii. 
Robinson,  George  D.  xv. 
Robinson,  John  P.  x. 
Rogers,  Jonathan  P.  xiv. 
Sartoris,  Mr.  xxii. 
Selfridge,  Thomas  O.    xv,  xx. 
Shaw,  Lemuel,  v. 
Somerby,  Gustavus  A.    vi,  xv. 
Sprague,  Seth.  xix. 
Stokes,  Edward,  xiii. 
Strong,  Solomon,  vi. 


Sweetser,  Theodore  H.  vi. 
Taney,  Roger  B.  xvii. 
Thomas,  Benjamin  F.  vi. 
Tirrell,  Albert  J.  xv. 
Tremont  Theatre,  xxii. 
Ward,  Artemas.  v. 
Warren,  Charles  H.    vi,  xii,  xix. 
Wayne,  James  B.  xvii. 
Webster,  Daniel,  vi. 
Webster,  Dr.  xiv. 
Webster  Trial,  xii. 
Wells,  Daniel,  x. 
Whiting,  William,    vi,  xx. 
Wilde,  Samuel  S.  v. 
Wilkinson,  Ezra,    vi,  xi. 
Willey,  Tolman.    vi,  x. 
Williams,  John  M.  v. 


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